For those who aren't familiar with the legal term, a declaratory judgment is one that resolves legal uncertainty where the plaintiff is in doubt as to his or her legal rights. The regulation that the OQLF tried to enforce had zero basis in law, the OQLF knew it and the companies that pushed back knew it as well. The judgment surprised nobody, but disappointed many in the French language militancy movement.
So why did the OQLF go where it knew it had no legal right to go?
For every major gaffe that comes to light, like Pastagate or Spoongate, there are hundreds and hundreds of victories over business' that decide that for financial reasons, or out of fear, not to fight, businesses that cave to OQLF pressure even when they are not breaking the law.
It's a cynical plan, one in which the OQLF calculates that the few setbacks it suffers by its ultra-vires action are worth the effort and that intimidating businesses without the force of the law on its side, a paying proposition in the long run.
It's the same rationale that scofflaws use when they exceed the speed limit or park illegally on an ongoing basis with the full understanding that the few times they get caught make the effort a paying proposition.
The real conclusion that the Montreal Gazette should have reached from the story is that the OQLF is an untrustworthy organization, one which enforces its mandate with reckless abandon and cynical disregard for the law and the rights of those they harass.
And so it was more in sadness than in anger that I read the shameful editorial by the Montreal Gazette encouraging the English community to give up in the face of this intimidation, because the issue of descriptors is not a 'big deal' and not 'worth' the fight.
This editorial could have been written by someone suffering from 'battered person syndrome,' where after years of physical and mental abuse, the abused believes that he or she is indeed the guilty party and that he or she well deserved the punishment meted out by the abuser."In a ruling earlier this month, the Office québécois de la langue française was reminded by the province’s Superior Court that the law is the law, and it is not incumbent on the language-watchdog agency to make it up as it goes along.
The ruling by Justice Michel Yergeau was in response to arguments from a group of large retail companies with English corporate names that the Office was overstepping its powers with a campaign to have them add some French generic words to the unilingual-English outdoor signs. The group included such firms as Best Buy, Costco, Gap, Old Navy and Walmart.
The Office was acting on complaints that reflect a growing feeling among many francophones that the proliferation of big-box stores and multinational franchise outlets with English brand names has become detrimental to the predominantly French face that Quebec should be putting forward.
At first, the Office launched a public-relations campaign aimed at persuading the targeted businesses to comply; then it followed up with warnings, threatening sanctions. It was then that the retailers went to court seeking clarification of their rights.
The court correctly noted that under the province’s language law, Bill 101, corporate trademarks are exempt from the rule obliging all commercial signage to be predominately in French. The exemption was written into the original bill when it was passed in 1977, and no government of any stripe has been moved to change it since.
Therefore, as the judge reminded it, the Office should have gone not after the stores, but to the government — to seek a change in the law that would sanction its initiative. There was no evidence that it did so, at least not while the former Marois government was in power, for nothing concerning trademarks was included in the former government’s Bill 14, an act to amend Bill 101 that it ultimately shelved (and then later promised to revive if elected April 7).
The retailers have a point, in that they are known the world over by their famous corporate names. On the other hand, they do protest a bit much with their claim that adding a generic French term that describes what they are selling would dilute the force of their brands.
Some have done so voluntarily with no evidence that it has hurt their business. Examples include Second Cup coffee shops in the province that have added a discreet “les cafés” to their logo, with the trademark otherwise predominant, or the New Look eyewear chain that has added “lunetterie” to their store signs. Some chains have gone so far as to translate their names entirely, such as Chalet Suisse restaurants, which are Swiss Chalets elsewhere, and Village des Valeurs stores, which are Value Village shops outside the province.
It is hard to see what harm it would do to the holdouts to follow suit, especially as the former Charest government had offered to help underwrite the cost of amending signage to add French generics. It would surely be the courteous thing to do in Quebec, and it would help relieve growing tensions in Quebec on the language front — which in turn might help prevent frustrations from being taken out on language issues that would directly harm the English-speaking community, notably with respect to recognition of municipalities’ bilingual status.
This is one language measure where anglophones should comfortably stand in unity with the Office, and help persuade these large mostly U.S.-controlled retailers that they should show a little more market sensitivity.
Battered person syndrome is highlighted by the following beliefs and attitudes;
- The abused thinks that the violence was his or her fault.
- The abused has an inability to place the responsibility for the violence elsewhere.
- The abused fears for their life and/or the lives of their children
- The abused has an irrational belief that the abuser is omnipresent and omniscient. Link
- The Gazette thinks that having an English name is shameful and dirty.
- The Gazette thinks that it isn't the OQLF that is at fault, but the English name holders
- The Gazette fears that the OQLF will punish us if we don't give in.
- The Gazette fears that the OQLF is omnipresent and omniscient.
"a growing feeling among many francophones"
I defy the Gazette to provide statistics proving that this is true.
The simple truth is that the issue is contrived, whipped up by sovereigntist language militants and the OQLF to stir up linguistic trouble. The only 'growing feeling' is the one at the OQLF, Société Saint-Jean Baptiste and Imperatif-francais, There isn't a poll or a survey that indicates that this assertion is true and I'll bet dollars to doughnut that the majority of francophones, if asked, would consider descriptors a non-issue.
I can't say for certain that I'm right, but then neither can the Gazette say that it is right.
Even if it were true, is that a reason to cave in?
Who can deny that there's "a growing feeling among many francophones" that the burgeoning Muslim community is a threat and that they should be controlled. Will the Gazette write an editorial supporting that?
At first, the Office launched a public-relations campaign
The Gazette editorial makes it seem as if the OQLF was acting in a conciliatory fashion, which it wasn't. The campaign was an illegal fantasy, a softening up effort, meant to get companies used to the idea of descriptors.
It's no different than a bully who spends all week reminding those in the schoolyard to prepare to pay protection money next week.
Politeness doesn't change anything.
"The exemption was written into the original bill...and no government of any stripe has been moved to change it since. Therefore, as the judge reminded it, the Office should have gone not after the stores, but to the government — to seek a change in the law that would sanction its initiative."
Back in 1977, the original framer of Bill 101 was the rabidly anti-English Camille Laurin, who included clause after clause of clearly unconstitutional regulations, all of which were thrown out by the Supreme Court. He actually admitted to Réne Levesque that he did so on purpose, hopeful that when the Supreme Court ruled against those clauses, the political humiliation would propel Quebec towards sovereignty.
So why he didn't include a clause demanding descriptors wasn't a case of benevolence, it was probably because he didn't think of it. At the time there were but a handful of stores with English names, the most important being Canadian Tire. Both Eaton's and Steinberg's had already dropped the apostrophe " 's " from their respective names and American retailers hadn't yet decamped.
But when later governments looked at the 'problem' of English store names, as more 'foreign' retailers joined the Quebec market, they were probably given legal advice that they couldn't change the law because of NAFTA, the trade agreement with the United States that forbade such a practice.
Article 1708: Trademarks LinkBy the way, had the government changed the law introducing descriptors and had the court ruled in favour of those descriptors, a complaint could very easily have been launched by any company affected under NAFTA rules. Governments may enact laws that contravene NAFTA, but they can be sued under the terms of the agreement.
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.
This has happened before and it can be expensive. In 2010 a NAFTA arbitration panel ruled that Newfoundland had violated the NAFTA agreement in expropriating of the assets AbitibiBowater and it cost the government $130 million dollars in compensation. Link
NAFTA's provisions allow foreign companies to file claims when their investments are adversely affected because of government action that contravenes the agreement, be it regulation, legislation or expropriation.
At any rate, the PQ government under Lucien Bouchard did consider changing the law in 2000 and sought advice from the Conseil supérieur de la langue française, a pro-French language body formed by the government to advise it on language matters.
Judge Michel Yergeau, who ruled against the OQLF in the anti-descriptor judgment, actually quoted from that report, in which the Conseil argued AGAINST adding descriptors for legal reasons.
The Conseil concluded that international law precluded the imposition of descriptors. Read the Judgment in French
...their claim that adding a generic French term that describes what they are selling would dilute the force of their brands
I've never heard any company make any such claim.
In fact the eight companies involved in the litigation have refused to discuss the matter and have placed a complete news blackout and embargo on the subject.
I'm sure the Gazette begged every single one of these companies for an interview or statement, but to no avail and to put words into these companies mouth is to impugn their motives.
I somehow suspect that the answer is a lot simpler. The companies don't want to add descriptors because the law doesn't provide for it and they like their trademarks just the way they are.
Some have done so voluntarily with no evidence that it has hurt their business
Because some companies make the business decision to change their name, does it mean that everyone has to?
Some women object to changing their name when they marry, some don't. (In fact, in Quebec, you must actually keep your maiden name.)
But because some women choose to take their husband's name without ill effect, does it mean that those who choose to remain faithful to their maiden name are somehow disrespectful and wrong?
Is it any argument to tell women that they should be obligated to change their name, because they won't suffer any prejudice and so should do so out of respect to their husband?
surely be the courteous thing to do
Hmmm... Opening the door for someone, giving up your seat on the Metro, allowing someone to take the last piece of pie, these are courteous things to do.
Changing your name because someone else is offended because it is English, is not a courteous thing to do, it is sadly indulgent.
comfortably stand in unity with the Office
The office québécois de la langue française is an enemy of Quebec Anglos and ethnics, something that should be manifestly clear to an English newspaper like the Gazette.
The Oh-feece has used as standard operating procedures, intimidation and threats. It has enforced rules that don't exist and terrorized merchants by marching in their places of business like storm troopers. There is nothing under the sun that the Oh-feece can do that Anglos should support, except should it ever announce its demise.
To make common cause with your abuser is as sad as a battered woman defending her abusive husband.
mostly U.S.-controlled retailers
Another sad and pathetic argument made by the Gazette, is intimating that since it would mostly be American-owned stores that would suffer, we should somehow let it go.
might help prevent frustrations
I have three grandchildren who I adore and by whom I readily admit to spoiling as much as I can.
I feed them too many sweets, let them stay up past their bedtime and let them play on their IPads much too long. I know I shouldn't, but invoke the grandparents version of the 'notwithstanding clause.'
But kids will be kids, they ask for the moon and always want more...just one more chocolate.. another hour before bed, just one more video game.
And so there comes a line I daren't cross.
They can't eat sweets to the exclusion of all else, they can't stay up forever and there comes a time when I have to forcibly remove the IPad from the vise-like grip they maintain on their precious screen.
My four-year old grandson is quite the negotiator and can perfectly justify why that fourth cookie is not only fair, but reasonable and failing a positive response sometimes (not often) resorts to a tantrum or the dreaded waterworks option.
Alas I admire his efforts, but try to remain stoic and firm. There's a limit to indulgence that good parents and grandparents must abide by, even in the face of such pressure. (believe me, it's hard to say no!)
And so I understand why the Montreal Gazette would want to indulge French language militants over their demand that stores in Quebec add descriptors, but it is a case of bad parenting, allowing good intentions to be manipulated beyond what is normal and healthy.
We've all witnessed those parents who give into their children, no matter what, and it usually makes us cringe when we witness such a public humiliation.
Such is the Montreal Gazette, an indulgent parent to a fault.
Just because the separatist language militants want a fourth cookie, doesn't mean we should give in.
Language militants are fanatics, nothing will satisfy them until the last Anglo quits Quebec. If the Gazette thinks that giving in on descriptors will be the end of the battle, they should read on.
This from Imperatif-francais website;
"In Gatineau, several angry citizens held protests against the offensive and polluting name; "Bulk Barn", which attacks Quebec's cultural environment.
Bulk Barn," a name that doesn't fit in with our Quebec character! Just seeing and saying the name "Bulk Barn" and looking at the company colours, one can understand that it has a rather anglicized profile...
...This visual pollution is spreading all over Quebec Link
Readers will note that the sign is complete with a descriptor, even if the law says it doesn't need one, but for radicals, that Maple Leaf, perhaps more than the name itself, is just unbearable.
Radical groups like IM, are hysterical in their denunciation of Canada and complain about just about everything, including chastising companies for having the audacity to defend their rights before the courts.
Jean-Paul Perreault, president of this language-defence group slammed those contesting 'descriptors,' urging shoppers to boycott stores which he claimed “lead a costly and merciless legal battle against Quebecers”.
Over at the Société Saint-Jean Baptiste website, they are expressing outrage that certain members of the Liberal party took the oath of office in English.
"April 17, 2014, several members of the PLQ took the oath of office in English at the National Assembly. Liberals do not seem to understand the distinction between individual and institutional bilingualism.This is the type of people and organizations that the Gazette thinks they can satisfy by giving in on descriptors. Sorry...it ain't gonna happen!
Knowledge of several languages is a personal enrichment. But the English-French bilingualism in public institutions creates a divide that hinders integration. Link
Now back when the descriptor controversy first hit the media, the SSJB defended their use as something normal and acceptable and in common use all over the world.
"If you're in Norway, it is normal to display in Norwegian, likewise in Japan. Why would it be different here? Because we are only eight million? "Asks Mr. Rousseau. Link
|Toy R Us in Norway (above) and in Japan (below.)|
I'm proud to say that I wrote a post that completely destroyed that fantasy, taking readers on a visual tour of the world, where the exact opposite of what the SSJB contended was true.
Read that post: OQLF Demands Descriptors, the World Laughs
I sent that post to all the media outlets, both English and French, as well as the SSJB and Imperatif-francais. I received nary a response.
But from that day on, neither separatist/lobby group ever repeated the lie that the rest of the world uses descriptors.
When the Gazette editorial board climbs down from its ivory tower, they might realize that giving in to these language fanatics over descriptors will never buy any peace.
I'll bet if these zealots had their way, the Gazette would be forced to publish its advertisements in French only. I'll bet some of them will argue that the Gazette shouldn't be allowed to publish in English at all or should be sold from under the counter, so as not to despoil the linguistic atmosphere.
As for normal francophone Quebecers being all steamed up over English names, don't believe a word of it.
'William' is the most popular name among francophone new born babies. Yup, William, not its French equivalent of 'Guillaume.'
There were 823 babies named 'William' born last year, while only four were named 'Gilles' and eight 'Guys'
It's funny how facts on the ground don't match up with separatist hype. The SSJB tells us that Quebecers hate our monarchy and want nothing to do with royals, yet the most popular name remains William.
In Quebec lat year, 625 babies were named 'Lea' and only four were named 'Josée'.
In fact, it seems that Quebecers are obsessed with Jewish biblical names for boys, including Nathan, Samuel, Jacob and Gabriel, all in the top ten. Link
Lastly readers, to the editorial board of the Gazette, a question.
Why doesn't the Montreal Gazette put its money where its mouth is and also adopt a descriptor, after all, everything they say in the editorial applies to itself. Even though it isn't the law, isn't the name of the newspaper as big an affront as is Canadian Tire to the French linguistic atmosphere of Quebec?