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Tax court judge violated witnesses' language rights

Federally-appointed judges would benefit from education on the linguistic rights of litigants and witnesses appearing before them, says Brampton lawyer-linguist Suzanne Deliscar.

In a recent case, the Federal Court of Appeal overturned a Tax Court decision after finding the judge violated the official language rights of an insurance company’s lawyer and its witnesses by ignoring their wishes to testify and communicate in French because they were bilingual, while another party in the case spoke only English fluently.

“I think judges, especially at the federal level, have to be educated about the rights of litigants to speak whichever of the official languages they wish. If interpreters are needed, then they ought to be provided,” Deliscar tells AdvocateDaily.com.

“It’s not something you can reach some compromise on,” adds the principal of Deliscar Professional Corporation, a law firm that offers services in English, French and Spanish.

She says some judges may have risen to the bench after long careers in private practice where language rights were never an issue, especially if they practised in a primarily unilingual jurisdiction.

“It’s not as if these issues come up every day, and they may never have crossed a judge’s mind,” Delsicar says.

The tax case involved a self-represented individual appealing the minister’s assessment of his employment with an insurance company during the year 2012. His former employer intervened, and several representatives were called to testify in court.

When one expressed a desire to speak French, the self-represented appellant requested an interpreter because of his only-basic French skills. Instead, the judge granted a break for counsel to reach a compromise, which resulted in the witness giving evidence in English. A second company representative also began their testimony in French, until the judge asked for it to continue in English for the benefit of the former employee.

After the Tax Court judge ruled in the former employee’s favour, the insurance company appealed the findings on the basis of the language rights breach.

In its April 20 decision the three-judge panel of the Federal Court of Appeal sided with the insurer, ordering the case back for a fresh hearing before a different decision maker after finding the previous hearing judge had “exerted subtle pressure on counsel… and the witnesses to forego their right to speak in the official language of their choice.”

“Each request to speak in the official language of their choice was treated by the Judge as a request for accommodation, as opposed to the exercise of protected official language rights,” the decision reads.

The judges also rejected an argument from the former employee that there was no violation because the affected parties spoke both English and French fluently.

“A person appearing before a federal court has the constitutional right to express him or herself in the official language of his or her choice regardless of whether he or she is bilingual. In other words, the fact of being bilingual does not extinguish one’s right to speak the official language of his or her choice,” the judges wrote.

In addition, the judges found that the former employee’s own language rights were violated because substantial portions of the hearing proceeded in French without adequate interpretation.  

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