V. Language Rights Related to Federal Institutions
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Devinat v. Canada (Immigration and Refugee Board)The obligation of federal tribunals to issue and make available their decisions in both official languages (within a reasonable time) was the subject of legal action taken before the Federal Court.81 At issue was the failure of the Immigration and Refugee Board (IRB) to provide French language versions of all past and current decisions. For a number of reasons, the IRB had adopted a policy of two-language versions for select decisions (considered important) and a policy of providing other decisions in the preferred official language of an individual only if the latter made a specific request. This policy of “translation upon demand” of specific decisions was challenged as being a breach of the statutory obligation to make all decisions available “at the earliest possible time.”
While the trial level court dismissed the plaintiff's action on the basis of jurisdictional issues,82 it also determined that the IRB was in breach of its statutory obligations to make tribunal decisions available in both official languages. Its view in this regard was adopted verbatim by the Federal Court of Appeal.83 It also endorsed observations made in a previous study of the Commissioner of Official Languages to the effect that the availability of tribunal decisions of jurisprudential value or policy significance was essential to ensure equal access to federal tribunals for French-speaking and English-speaking Canadians.84 Nevertheless, the statutory obligation in question extends beyond this objective insofar as it requires all decisions to be made available “at the earliest possible time,” regardless of their importance or even utility to third parties.
To require that all past unilingual decisions of the IRB be translated into the other official language would, as the Federal Court of Appeal noted, entail significant if not prohibitive costs. It was therefore reluctant to issue a court order to that effect, pointing out as well that the mandatory translation of thousands of past decisions was devoid of any practical value.85 Only decisions of some jurisprudential importance could arguably be said to relate to third parties and give rise to any reasonable likelihood that they would be consulted. Thus, on a balance of the inconveniences raised by the facts of the case, the Court of Appeal refused the plaintiff's motion for an order of mandamus against the IRB relating to its past unilingual decisions. At the same time, it pointed out that the IRB was obliged to ensure that all future decisions conformed to the requirements of bilingual issuance and availability imposed by section 20 of the OLA, at least until such time as those requirements were altered by legislative amendment.86a
3. Choice of Language before Federal Tribunals
With respect to their adjudicative functions, federal tribunals are also required to ensure that judges or decision makers are able to understand directly the official language used by the parties who appear before them.86b Where the parties choose to proceed in different official languages, presiding members of the tribunals are required to be bilingual. These duties are set out in section 16 of the OLA and are the natural corollaries of the underlying right to use either official language before all federal courts and quasi-judicial tribunals found in section 14 of the OLA, as well as in section 19 of the Charter.
Copyright Board of Canada: Language of Proceedings
Statutory provisions relevant to choice of official language before federal tribunals were recently considered by the Copyright Board of Canada as they applied to hearings to establish tariffs relevant to copying for private use. At a pre-hearing conference the chairman of the Copyright Board took note of the fact that the parties who would be making representations intended to use different official languages. This emerged from the request of one of the parties that the hearing be conducted in both English and French. Given that both official languages would be used at the hearing, the chairman considered it important to consider and resolve the issue of the language abilities of the members of the board selected to hear the matter. It appears from comments made by the chairman in his written decision87 that interpretation had been used in the past by members of the board presiding at other hearings to understand evidence submitted in French.
