Docket: A-145-16
Citation:
2017 FCA 80
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CORAM:
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GAUTHIER J.A.
BOIVIN J.A.
DE MONTIGNY J.A.
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BETWEEN:
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INDUSTRIELLE
ALLIANCE,
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ASSURANCE ET
SERVICES FINANCIERS INC.
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Appellant
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and
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KASSEM MAZRAANI
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Respondent
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and
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MINISTER OF
NATIONAL REVENUE
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Respondent
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REASONS
FOR JUDGMENT
BOIVIN J.A.
I.
Introduction
[1]
This is an appeal of a decision of Justice
Archambault (the Judge) of the Tax Court of Canada (TCC), cited as 2016 TCC 65.
[2]
On April 5, 2017, this Court rendered judgment
from the bench with reasons to follow. In so doing, this Court granted the
appeal, quashed the judgment below, and sent the matter back to the TCC for a
new hearing before a different judge.
[3]
In this appeal, the appellant, Industrielle
Alliance, Assurance et Services Financiers Inc. (Industrielle Alliance), essentially
submits that there were multiple violations of the official language rights of
witnesses and its counsel during the hearing before the TCC.
[4]
Mr. Mazraani, a self-represented respondent,
submits that no such violations occurred, arguing that language is only a
matter of communication and that the documentary evidence spoke for itself. Moreover,
Mr. Mazraani contends that (i) the witnesses and counsel were all
bilingual; (ii) all persons involved in the hearing before the TCC consented to
addressing the TCC in English; and (iii) Industrielle Alliance raises language
rights merely as a strategic move “to ambush the judgment
of the TCC”.
[5]
The Minister of National Revenue (the Minister),
also a respondent in this appeal, shares the position taken by Industrielle
Alliance and further contends that Mr. Mazraani’s official language rights were
violated.
II.
Issues on Appeal
[6]
This appeal raises three questions:
1.
Were the constitutional and quasi-constitutional
official language rights of witnesses and counsel violated in the course of the
hearing before the TCC?
2.
Did the questions the Judge put to Industrielle
Alliance’s witnesses give rise to a reasonable apprehension of bias?
3.
Did the Judge err in determining that Mr.
Mazraani occupied insurable employment while working for Industrielle Alliance?
[7]
Given this Court’s finding that the constitutional
and quasi-constitutional official language rights of witnesses, counsel for Industrielle
Alliance, as well as Mr. Mazraani’s rights were all violated in the course of
the hearing before the TCC, it is unnecessary to determine whether Mr. Mazraani
has been engaged in insurable employment while working for Industrielle
Alliance, or the reasonable apprehension of bias issues. However, I will
provide an observation in connection with the latter issue.
III.
Official Language Rights before Proceedings in
Federal Courts
[8]
It is trite law that English and French are the
official languages of Canada and have equality of status and equal rights and
privileges in courts established by Parliament, including the TCC. Hence, any
person who appears before or submits written pleadings to a federal court has
the constitutional right to use the official language of his or her choice: see
section 133 of the Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.
3, reprinted in R.S.C. 1985, App. II, No. 5. This constitutional right is also
reflected and confirmed in sections 16 and 19 of the Canadian Charter of
Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[9]
The Supreme Court of Canada in MacDonald v.
City of Montreal, [1986] 1 S.C.R. 460 at 483, 27 D.L.R. (4th) 321 recalled
that the constitutional right to use the official language of one’s choice in courts
covered by section 133 of the Constitution Act, 1867 applies broadly to
“litigants, counsel, witnesses, judges and other judicial officers”.
[10]
Significantly, a person’s ability to express him
or herself in both official languages does not impact such person’s
constitutional right to choose either French or English in the context of court
proceedings. One’s ability to speak both official languages is “irrelevant”. In
the words of the Supreme Court of Canada in R. v. Beaulac, [1999]
1 S.C.R. 768, 173 D.L.R. (4th) 193 at paragraph 45 [Beaulac]:
In the present instance, much discussion was
centered on the ability of the accused to express himself in English. This
ability is irrelevant because the choice of language is not meant to support
the legal right to a fair trial, but to assist the accused in gaining equal
access to a public service that is responsive to his linguistic and cultural
identity. …
[11]
The Supreme Court of Canada further observed:
Language is so intimately related to the
form and content of expression that there cannot be true freedom of expression
by means of language if one is prohibited from using the language of one’s
choice. Language is not merely a means or medium of expression; it colours the
content and meaning of expression. It is, as the preamble of the Charter of
the French Language itself indicates, a means by which a people may
express its cultural identity. [Emphasis added.]
Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 at 748-749, 54 D.L.R. (4th) 577; cited in Beaulac
at paras. 17, 34.
[12]
The Official Languages Act, R.S.C. 1985,
c. 31 (4th Supp.) (OLA), which falls under the privileged category of
quasi-constitutional legislation (Thibodeau v. Air Canada, 2014 SCC 67,
[2014] 3 S.C.R. 340 at para. 12) provides as follows at sections 14 and 15:
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14 English and French are the official languages of the federal
courts, and either of those languages may be used by any person in, or in any
pleading in or process issuing from, any federal court.
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14 Le
français et l’anglais sont les langues officielles des tribunaux fédéraux;
chacun a le droit d’employer l’une ou l’autre dans toutes les affaires dont
ils sont saisis et dans les actes de procédure qui en découlent.
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15 (1) Every federal court has,
in any proceedings before it, the duty to ensure that any person giving
evidence before it may be heard in the official language of his choice, and
that in being so heard the person will not be placed at a disadvantage by not
being heard in the other official language.
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15 (1) Il incombe aux tribunaux
fédéraux de veiller à ce que tout témoin qui comparaît devant eux puisse être
entendu dans la langue officielle de son choix sans subir de préjudice du
fait qu’il ne s’exprime pas dans l’autre langue officielle.
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(2) Every federal court has, in any
proceedings conducted before it, the duty to ensure that, at the request of
any party to the proceedings, facilities are made available for the
simultaneous interpretation of the proceedings, including the evidence given
and taken, from one official language into the other.
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(2) Il
leur incombe également de veiller, sur demande d’une partie, à ce que soient
offerts, notamment pour l’audition des témoins, des services d’interprétation
simultanée d’une langue officielle à l’autre langue.
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…
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[…]
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[13]
Subsection 15(1) of the OLA thus establishes, inter
alia, a positive duty on federal courts to ensure that any person giving
evidence before them may be heard, without disadvantage, in the official
language of his or her choice. Subsection 15(2) of the OLA further establishes
a similar duty on the federal courts to ensure that simultaneous interpretation
from one official language into the other is made available for any proceeding
before it where a party requests such services. In so doing, the OLA reflects
that the “freedom to choose [between French and
English] is meaningless in the absence of a duty of the State to take positive
steps to implement language guarantees” (Beaulac at para. 20).
[14]
Against this background, I now turn to the issues
at bar.
IV.
Analysis
[15]
The present proceedings were triggered by a
determination on the part of the Canada Revenue Agency that Mr. Mazraani did
not occupy insurable employment within the meaning of paragraph 5(1)(a)
of the Employment Insurance Act, S.C. 1996, c. 23. The Minister subsequently
confirmed this determination, which was challenged by Mr. Mazraani before
the TCC.
[16]
The appeal before the TCC was conducted pursuant
to subsection 18.15(3) of the Tax Court of Canada Act, R.S.C. 1985, c.
T-2, which directs the TCC to conduct the appeal “as informally and expeditiously as the circumstances and
considerations of fairness permit”. Mr. Mazraani, who was self-represented
before the TCC, submitted his notice of appeal in English. The Minister, in
accordance with section 18 of the OLA, submitted her reply in English.
Industrielle Alliance, the employer and an intervenor before the TCC, submitted
its notice of intervention in French.
[17]
Language issues arose on the second day of the
hearing when counsel Turgeon for Industrielle Alliance indicated that his first
witness, being Mr. Michaud, would be testifying in French. In response, Mr. Mazraani
clearly indicated that he would need an interpreter if Mr. Michaud was to
testify in French (Transcript, vol. 1 at pp. 269-270):
JUSTICE ARCHAMBAULT: Fine. So let’s start with Mr. Michaud. It’s
Michaud. It’s not Comeau. It’s Michaud.
MR. TURGEON: Bruno Michaud. Monsieur Bruno Michaud.
JUSTICE ARCHAMBAULT: O.K. So ---
MR. TURGEON: That will testify in French if you have no ---
JUSTICE ARCHAMBAULT: I don’t have any problem except that the party
– you don’t understand French very well?
MR. MAZRAANI: No.
JUSTICE ARCHAMBAULT: So ---
MR. TURGEON: And I hesitate to impose the witness ---
JUSTICE ARCHAMBAULT: Okay. Because ---
MR. TURGEON: Well, yeah, my colleague is referring to the Exhibit
E-4 – A-4 that is – that he’s speaking French.
MR. JILWAN: His job application.
--- (SHORT PAUSE)
MR. TURGEON: And my client knows as a matter of fact that he’s
speaking French.
JUSTICE ARCHAMBAULT: He picked up the lowest
---
MR. TURGEON: Yeah.
JUSTICE ARCHAMBAULT: --- the lowest level of
French.
Are you uncomfortable with having this
witness testify in French?
MR. MAZRAANI: Of course.
JUSTICE ARCHAMBAULT: Would you need
-- would you need an interpreter?
MR. MAZRAANI: Of course.
JUSTICE ARCHAMBAULT: Of course what?
MR. MAZRAANI: I need an interpreter. I
can’t ---
JUSTICE ARCHAMBAULT: You need an
interpreter.
MR. MAZRAANI: --- because this case is ---
MR. TURGEON: Okay. Let me ---
JUSTICE ARCHAMBAULT: Because I have to -- you
know, I have to be fair to both parties. You know, I’m prepared to let him
speak in French but then I would have to arrange for an interpreter for him.
[Emphasis added.]
[18]
Upon being informed by counsel Turgeon that the
witness Mr. Michaud wanted to testify in French and that one of the parties, being
Mr. Mazraani, needed an interpreter, it was incumbent upon the Judge to adjourn
the hearing in order to arrange for interpretation services. It was his duty to
respect Mr. Michaud’s choice to testify in French and Mr. Mazraani’s request
for an interpreter (OLA, subsections 15(1), (2)).
[19]
Instead, the Judge granted a break for counsel
Turgeon to devise a compromise. Counsel Turgeon proposed that Mr. Michaud
testify in English but that he be permitted to express himself in French on
technical issues, which could then be translated into English. The Judge
accepted this “pragmatic” compromise. In doing so, the Judge failed to uphold
his positive duty to ensure that witnesses are heard in the official language
of their choice.
[20]
Another violation of official language rights resulted
from the Judge’s treatment of another witness, Mr. Charbonneau, who had
likewise expressed the desire to speak in French. Once counsel Turgeon began
examining Mr. Charbonneau in French, the Judge interrupted the witness
examination to request that it be conducted in English. Mr. Charbonneau
replied by asking if he could respond in French. Rather than accede to this request,
as required by subsection 15(1) of the OLA, the Judge focused on Mr. Mazraani’s
inability to understand French (Transcript, vol. 2 at pp. 608-609):
[Translation]
MR. TURGEON: MR. Charbonneau, can you tell
us, since when are you connected to Industrielle Alliance...
JUSTICE ARCHAMBAULT: Is it possible to -- to
do it in English?
MR. TURGEON: Oh, oh yeah, I’m sorry, I’m not
sure ---
JUSTICE ARCHAMBAULT: Can you speak?
MR. CHARBONNEAU: Can I just say something?
JUSTICE ARCHAMBAULT: Yes.
MR. CHARBONNEAU: Yes, as a matter of
fact, I am better in French …
JUSTICE ARCHAMBAULT: Yes.
MR. CHARBONNEAU: …and I am a little
surprised because at work our meetings are, everything is done in French.
JUSTICE ARCHAMBAULT: M’hm.
MR. CHARBONNEAU: Can I answer in French?
JUSTICE ARCHAMBAULT: But the taxpayer
…the person before us today [Mr. Mazraani] whose case…whose case is
the subject of this appeal…
MR. CHARBONNEAU: Yes.
JUSTICE ARCHAMBAULT: …tells us that he
has a hard time understanding French. So we are asking as much as possible to
the witnesses to speak English. Are you relatively comfortable speaking
English?
MR. CHARBONNEAU: Well I’ll try …
[Emphasis added.]
[21]
During the course of the proceedings before the
TCC, counsel Turgeon and other witnesses were treated similarly and were denied
their right to choose to speak in French because of their English language
skills (see for example: Transcript, vol. 2 at p. 555 (Ms. Lambert) and Transcript,
vol. 4 at pp. 1256, 1336-1337 (counsel Turgeon)). In turn, 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.
[22]
In each instance, the Judge coaxed counsel and
the witnesses to use English. In conducting the proceedings, the Judge favoured
English over French in order to accommodate Mr. Mazraani’s limited understanding
of French. This resulted in a violation of counsel Turgeon and the witnesses’
official language rights. The Judge exerted subtle pressure on counsel Turgeon
and the witnesses to forego their right to speak in the official language of
their choice, in this case French (Chiasson v. Chiasson, 222 N.B.R. (2d)
233 (C.A.); [1999] N.B.J. No. 621 (QL)). Mr. Mazraani contends that the
witnesses and counsel Turgeon freely consented to speak in English and that Industrielle
Alliance’s reliance on language rights is merely strategic. The transcript of
the proceedings simply does not support such a conclusion.
[23]
Mr. Mazraani also argues that no prejudice is
suffered where an individual is capable of expressing him or herself in both
official languages. This argument is ill-founded. 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: Beaulac at
paragraph 45.
[24]
Moreover, despite the efforts of the Judge to
have the witnesses testify in English, a significant portion of the testimony
was in French due to the difficulty some witnesses had expressing themselves in
English. Of particular note is the testimony of Éric Leclerc, whose testimony had
significant French portions (see for example: Transcript, vol. 4 at pp. 1206,
1207 1222, 1228, 1266, 1323, 1324, 1332). Although the Judge translated some of
the witnesses’ French testimony into English for Mr. Mazraani, many exchanges
were left untranslated. At times, Mr. Mazraani expressed his inability to
understand what was happening, saying “I have to
understand” (Transcript, vol. 4 at pp. 1249, 1320). Given Mr. Mazraani’s
earlier request for interpretation services should there be testimony in
French, it follows that the fact that witnesses and counsel Turgeon addressed
the Judge in French with little to no translation constituted a violation of
Mr. Mazraani’s official language rights (Minister’s Memorandum of Fact and
Law at para. 59).
[25]
At the hearing before this Court, Mr. Mazraani
alleged that counsel Turgeon directed witnesses to speak in French in order to
prevent him from understanding their testimony. While I make no determination
on this point, I note that the issue would not have arisen had the Judge adjourned
for the purpose of securing interpretation services.
[26]
In the end, the efforts of the Judge to be
“pragmatic” in finding ways around adjourning and securing interpretation
services resulted not only in the violation of the official language rights of counsel
Turgeon and witnesses, but also the violation of Mr. Mazraani’s official language
rights. It simply was not open to the Judge to seek a shortcut around the official
language rights of all those involved in the proceedings. The Judge’s failure
to exercise his duty to ensure that the official language rights at issue were
protected not only resulted in their violation, but further resulted in delays
that could have otherwise been avoided by an adjournment to secure proper
interpretation services. Pragmatism does not trump the duty to respect the
official language rights of all in the course of judicial proceedings.
[27]
Finally, Industrielle Alliance submits that the
Judge’s interventions and questions to its witnesses gave rise to a reasonable
apprehension of bias. Suffice it to say that the number of interruptions and questions
the Judge put to the witnesses appears to be excessive, even in the context of
a party being self-represented and the proceedings being conducted informally:
see NCJ Educational Services Limited v. Canada (National Revenue),
2009 FCA 131, 392 N.R. 11. For instance, Industrielle Alliance contends that
the Judge put no less than 102 questions to the witness Mr. Michaud
(Industrielle Alliance’s Memorandum of Fact and Law at para. 50). But given my
finding on the issue of official language rights, I make no determination in
this regard.
[28]
Likewise, it is unnecessary to consider the
employment issue.
V.
Conclusion
[29]
I would therefore allow the appeal, quash the
judgment below and remit the matter to the Tax Court of Canada for a new
hearing before a different judge. It goes without saying that the transcript of
the first trial shall not be relied upon either by the parties or the judge
hearing the second trial. As the parties did not seek costs, none should be
awarded.
“Richard Boivin”
“I agree
Johanne Gauthier
J.A.”
“I agree
Yves de Montigny J.A.”
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