Supreme Court decision a boost for language rights
By AdvocateDaily.com Staff
The unanimous nine-judge panel’s ruling upheld a Federal Court of Appeal judgment which overturned a Tax Court decision after the judge was found to have violated the official language rights of an insurance company’s lawyer and its witnesses.
According to the judgment, the trial judge ignored their wishes to testify and communicate in French because they were bilingual, while another party in the case spoke only English fluently.
“We’re seeing more and more that judges are becoming aware of how important language rights are as a part of access to justice,” says Deliscar, principal of Deliscar Professional Corporation, a law firm that offers services in English, French and Spanish.
“It was pleasing to see the court recognize that these are principles of natural justice, and these rights are not something to be ignored anymore,” she adds.
The 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 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 testifying 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 a breach of language rights.
In its 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 Tax Court judge had “exerted subtle pressure on counsel … and the witnesses to forego their right to speak in the official language of their choice.”
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.
The Supreme Court panel confirmed those findings.
“All persons who appear in federal courts must be able to freely exercise their fundamental and substantive right to speak in the official language of their choice,” wrote SCC Justices Clément Gascon and Suzanne Côté on behalf of their colleagues. “Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada.”
While it may be tempting for the sake of convenience to proceed in English when most of the participants understand the language, Deliscar says judges must treat requests for language accommodation seriously, especially considering the stressful nature of court for laypeople.
“In that kind of situation, you’re going to feel most comfortable defaulting to your native tongue rather than a second or third language, and if you’re not given that opportunity, it’s going to seriously affect your ability to put forward a claim or defend against one,” she says.