V. Language Rights Related to Federal Institutions
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Copyright Board of Canada: Language of Proceedings (cont.)
After concluding that the hearing in question was adjudicative in nature,88 the chairman went on to consider the objectives of the OLA in light of the decision of the Supreme Court in Beaulac. He cited the latter to the effect that “[w]here institutional bilingualism in the courts is provided for, it refers to equal access to services of equal quality for members of both official language communities in Canada.” He referred also to the opinion of the Court that “the exercise of language rights must not be considered exceptional, or as something in the nature of a request for an accommodation.” He therefore concluded that the freedom to use either official language before the Copyright Board could not be construed as conditional upon the agreement of other parties.
A federal tribunal does not have any discretion to limit the right and must respect the clearly expressed duties that are set out in section 16 of the OLA. In cases where a party requests that a hearing be conducted in both official languages, one can draw no other conclusion than that the parties as a whole will be using different official languages at one time or another during the hearing. In such cases, the duty to ensure that members of the tribunal understand both official languages without interpretation clearly applies. The chairman therefore ordered that the hearing take place before members of the board who were all bilingual.
Belair v. Canada (Solicitor General)
Whether a board or tribunal is exercising adjudicative functions is central to determining whether the provisions in section 16 of the OLA apply, as was the case with respect to hearings before the Copyright Board. The Federal Court has considered the same preliminary issue in the context of proceedings before a disciplinary tribunal established under the Corrections and Conditional Release Act.89 The facts pertain to a prisoner accused of two disciplinary offences who requested that his hearing before the tribunal be conducted by an officer who understood French without the assistance of an interpreter. The disciplinary tribunal denied his request; the prisoner was found guilty of the offences and fined twenty-five dollars.
On appeal to the Federal Court for an order quashing the tribunal decision, the presiding judge admitted that a disciplinary tribunal would seem to be exercising an adjudicative function. However, case law from the Supreme Court had established in another context that such a tribunal was purely administrative and could not be said to perform quasi-judicial functions.90 In light of this precedent, the Federal Court felt it had no choice but to confirm that a disciplinary tribunal did not exercise any adjudicative functions within the meaning of subsection 16(2) of the OLA. With respect to non-adjudicative functions, an administrative tribunal is not bound by the statutory obligation to ensure that the presiding officer is able to understand directly the preferred official language of a party. As a result, the application for judicial review of the disciplinary tribunal’s decision was rejected.
