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SCC upholds order for new trial after language rights infringed

|Written By Elizabeth Raymer
SCC upholds order for new trial after language rights infringed
Cameron Fiske, a partner at Milosevic Fiske LLP, acted for the appellant, who had been self-represented, on a pro bono basis before the Supreme Court.

The Supreme Court of Canada has dismissed the appeal of a man in a tax dispute and employment status case, after the Federal Court of Appeal ordered a new trial because the official language rights of witnesses had been violated in hearings before the Tax Court of Canada during an informal procedure.

In Mazraani v. Industrial Alliance Insurance and Financial Services Inc., a unanimous Supreme Court found that the violations of the language rights of several witnesses and respondent’s counsel before the Tax Court of Canada were “numerous” and had an “undeniable impact” on the witnesses and parties, the conduct of the hearing and even on its outcome, bringing the administration of justice into disrepute. 

While lawyers have duties to advise clients and witnesses of their rights, including their language rights in court, “these duties, which are complementary to that of the judge, do not relieve the judge of his or her responsibilities in this regard,” justices Clément Gascon and Suzanne Côté wrote on behalf of the Supreme Court in today’s decision.

“It is the judge of the federal court in question who is primarily responsible for upholding the language rights of witnesses, of parties and of any individual who appears before him or her.”

The appellant in the case, Kassem Mazraani, worked as an insurance salesman for Industrial Alliance Insurance and Financial Services Inc. in Montreal. After his contract with Industrial, which stipulated that he was self‑employed, was terminated, he asked the Canada Employment Insurance Commission to consider this employment to be insurable employment so that he could obtain employment insurance benefits. The commission refused to do so, and its refusal was upheld by the Canada Revenue Agency. Mazraani took the case to the Tax Court of Canada, where his former employer intervened.

At the Tax Court hearing, Industrial’s first witness stated that he wished to testify in French, and Mazraani told the judge he would need an interpreter. The judge informed counsel for Industrial that if the witness testified in French, the hearing would have to be adjourned until another day so that an interpreter could attend. The witness subsequently testified in English, using a few words in French where necessary. During the rest of the hearing, some of the other witnesses as well as counsel for Industrial also indicated that they wanted to speak in French, but the judge asked them to speak in English and steered the testimony and the presentation of counsel’s argument back to English. He no longer mentioned the possibility of calling in an interpreter. The judge decided in Mazraani’s favour, and Industrial appealed the decision on the ground that the language rights of its witnesses and counsel had been violated. The Federal Court of Appeal allowed the appeal and ordered a new hearing before a different judge. The Supreme Court upheld this decision.

Yves Turgeon, a partner at Fasken Martineau DuMoulin LLP in Montreal, who acted for the respondent Industrial, told Legal Feeds that the hearing before the Tax Court marked the first time in his 30 years of practice that he had seen a witness effectively required to testify in an official language that was not his or her language of choice and that he had been uncomfortable presenting his argument in English before the judge. Today’s decision, he says, clarifies that official language rights must be upheld even in informal procedures such as those before the Tax Court of Canada in this case.

“[L]anguage rights are ‘a fundamental tool for the preservation and protection of official language communities where they do apply’ (Beaulac, at para. 25) and must be interpreted in a way that supports the achievement of that objective,” the Supreme Court noted in its judgement. 

“Second, the courts are responsible for discharging this duty in light of the very words of ss. 14  and 15  of the OLA [Official Languages Act]. Section 14  does not require that a specific request be made or that a special procedure be followed so that one language or the other can be used in the court in question. It merely decrees that the two official languages have equal status in the sense that any person can use one or the other in the federal courts.”

In today’s decision, “the court reaffirmed again that French and English are equal languages before the federal courts and that resources have to be there to provide equal service,” says Nicolas Rouleau, a Toronto-based appellate lawyer and constitutional litigator who represented the intervener Canadian Bar Association. “Courts and judges need to take a leadership role in ensuring language rights are met.”

The decision is also important for self-represented litigants, says Cameron Fiske, a partner at Milosevic Fiske LLP in Toronto, who acted for the appellant — who had been self-represented — on a pro bono basis before the Supreme Court.

“As our client had been self-represented, we emphasized the importance of their rights also being respected,” Fiske told Legal Feeds. “The [Supreme] Court held that judges are encouraged to engage in case management activities in advance of trial so that a situation such as this never happens again. In other words, so that all parties are aware of what witnesses are being called and in what language.”

  • Bravo to pro bono counsel

    Matthew Cohen
    Pro Bono Ontario was honoured to help in this case by engaging Milosevic Fiske LLP as pro bono counsel for the appellant. The firm's commitment to access to justice is extraordinary. Bravo!