In Mazraani v Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50, the Supreme Court of Canada affirmed that there is a duty on judges of the Tax Court of Canada to ensure that the language rights of participants in the court process are protected.
Background
Mr. Kaseem Mazraani was terminated from his employment at Industrial Alliance Insurance and Financial Services Inc. In his employment contract, it stipulated that he was self-employed. As a result, the Canada Employment Insurance Commission found that he did not qualify for employment insurance benefits. Mr. Mazraani appealed the Commission's determination to the Canada Revenue Agency, which upheld the decision of the Commission. Mr. Mazraani further appealed to the Tax Court of Canada.
Although the TCC proceeding was between Mr. Mazraani and the Minister of National Revenue, who was defending the CRA decision, Industrial intervened because it had a significant business interest at stake and presented most of the evidence at trial. Industrial filed its application to intervene in French.
Several of Industrial’s witnesses as well as Industrial’s counsel asked to speak in French. However, Mr. Mazraani spoke English and did not understand French. The TCC judge persuaded each witness and Industrial's counsel to speak in English. In its decision, the TCC ruled in Mr. Mazraani’s favour and “suggested that the witnesses had played with words and syntax to avoid telling the whole truth.” The court also criticized Industrial’s counsel for misleading the court and Industrial for not being forthcoming.
Unhappy with the TCC's decision, Industrial appealed it to the Federal Court of Appeal which allowed the appeal, finding that the language rights of both the witnesses and counsel had been violated and ordering a new hearing before a different judge. Mr. Mazraani appealed to the Supreme Court of Canada.
Supreme Court of Canada decision
The court, in a unanimous judgement, upheld the FCA’s decision ordering a new trial.
In its reasoning, the court noted that “language rights are substantive rights, not procedural rights” and these rights must be “interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada.”
It also noted that the constitutional protection of language rights set out in section 133 of the Constitution Act, 1867 and section 19 of the Canadian Charter of Rights and Freedoms, apply to proceedings before the TCC. There are also quasi-constitutional rights set out in the Official Languages Act.
Broadly speaking, sections 14 and 15(1) of the Official Languages Act impose a duty on the court to ensure that any individual can give evidence before the federal court in the official language of their choice and section 15(2) provides that an individual has the right to an interpreter. The court characterized these rights as distinct from each other.
The court held that if a party argues a case in an official language the other party does not understand, the judge must inform the other party of his or her right to an interpreter and clarified that if a party refuses the use of an interpreter, this should not be used to force the other parties, witnesses or lawyers to speak in that party’s official language.
The court further held that the responsibility for ensuring the protection of language rights lies with the federal court judge and that individuals only have to speak in the official language of their choice to exercise their right. Consequently, it would be a violation of their language rights for a person to be required to speak in an official language other than the language of their choice.
As well, individuals have the right to make an informed choice as to which language to speak and so the court must ensure that they are aware of their language rights.
Regarding remedy, the court stated that any remedy must achieve the objective of the right, which is “full and equal participation of linguistic minorities in the country’s institutions.” The court also noted that “because language rights are not procedural rights, the fact that a violation has had no impact on the fairness of the hearing is in principle not relevant to the remedy.”
As a result, the court concluded that in most cases a new hearing will be appropriate for a language rights violation, but that the “remedy cannot be disproportionate in relation to the scale of the language rights violation, its recurrence and its impact on personal dignity,” and so in some circumstances, a cost order or other remedy under section 24(1) of the Charter may be appropriate. If a new hearing is not ordered, the court indicated that the decision "must always be carefully explained in light of both of the violation's seriousness and of the remedy's impact."
In this case, the court found that the violations were numerous and had an impact on the witnesses, on the parties and on the hearing, thereby violating the language rights of several individuals in the hearing. Further, it was a violation of the witness' right under section 15(1) of the OLA for the TCC judge to have asked the witness whether the hearing should be adjourned or, in the alternative, whether the witness could testify in English. The court also noted that the TCC judge’s criticism of the witnesses in his reasons was hard to separate from the language difficulties of the witnesses.
The court also found it was a violation of the language rights of Industrial’s counsel to force him to present his arguments in English and that this violation was directly related to “his client’s right to participate in the hearing in the official language of its choice.”
Accordingly, the court found these numerous and serious violations brought the administration of justice into disrepute, had an impact on the conduct and outcome of the hearing and so dismissed the appeal, thereby affirming the decision of the FCA.
Takeaways
While sections 14 and 15 of Official Languages Act, which were relied on in this case, may not be directly applicable to administrative tribunals, the language of section 133 of the Constitution Act and the official languages provisions under the Charter make it clear that there is broad protection of official language rights.
Therefore, while the nature of the duty will likely vary depending on the administrative tribunal, this decision demonstrates that there may be a requirement on some tribunals to ensure that the language rights of participants in the tribunal process are protected.
Christopher Wirth is a partner and Alana Spira is an articling student with Keel Cottrelle LLP