VI. Language Rights Related to Provincial Jurisdiction
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Dehenne v. Dehenne (cont.)
Since the breach of language rights in this case called for an appropriate remedy, the court ordered that the Office of the Public Trustee be deprived of its usual fee collected to cover the costs of processing applications for the designation of a legal representative (or trustee) for an incapacitated person.
5. Choice of Language before Ontario Courts
Wittenberg v. Fred Geisweiller/Locomotive Investments Inc.
Another decision of the Superior Court of Ontario111 illustrates that the general statutory right to use French before the courts constitutes a substantive right that must be given full effect. The facts of the case pertain to trial proceedings before the Ontario Small Claims Court where the plaintiff requested that his arguments be heard in French. The presiding judge ruled at trial that the plaintiff should have made a formal motion invoking his right to a bilingual proceeding. In light of his failure to do so, the judge (who was unilingual) ordered that the proceedings continue in English.
On appeal, the Superior Court pointed out that any party before the courts of the province has the statutory right to require that procedures be conducted as a bilingual proceedings.112 While provisions under legislation governing the Small Claims Court direct it to proceed in a summary way to keep costs low and procedures simple, such provisions should not operate in such a way as to deprive a party of important language rights. The Superior Court emphasized that “there are important historical, political and social reasons for legislation which protects linguistic rights of the Francophone population in Ontario” and such legislation “should be given a broad interpretation.”113
On the facts of the case, the Superior Court quickly concluded that the plaintiff had in no way waived his right to a bilingual proceeding. In its view, the trial judge should have adjourned the proceeding to allow for the assignment of a bilingual judge able to conduct the proceedings in both official languages. His failure to do so resulted in a “substantial wrong” that required that a new trial be ordered, to be conducted as a bilingual proceeding.
6. Language of Judicial Decisions in Quebec
The Quebec Court of Appeal has reviewed an application for a declaratory judgment and mandamus relevant to the language in which judicial decisions are rendered and made available.114 As a preliminary issue, the Court of Appeal confirmed that it is settled law that section 133 of the Constitution Act, 1867 (and parallel provisions in other parts of the Constitution) guarantees the right of litigants, witnesses, lawyers and other judicial officers to use either English or French in proceedings before the courts of Quebec. However, this underlying right does not create correlative obligations on the government to establish any form of institutional bilingualism that facilitates access to the courts in one language or the other. As a result, section 133 cannot be relied upon by a litigant or party before the courts to require the government to ensure that court decisions are rendered or made available in their preferred official language.115
The only issue that remained to be examined therefore concerned the claim that the constitutional protection of freedom of expression and the right to equality (under sections 2 and 15 of the Canadian Charter), as well as similar provisions under Quebec statutory law (sections 3 and 10 of the Quebec Charter of Human Rights and Freedoms), created an obligation on the government to ensure that court decisions were rendered and made available in the preferred language of litigants. With respect to the language in which judgments are rendered, the Court of Appeal pointed out that a general right to equality cannot be interpreted in such a way as to contradict the clear provisions of section 133 of the Constitution Act, 1867. By virtue of that section, judges enjoy the constitutional right to render their judgments in either English or French. The fact that a judge renders a decision in English despite the fact that one of the litigants is francophone does not, therefore, constitute discrimination based on language which violates the general right to equality. Neither can a general right to freedom of expression be relied upon to place in question the validity of a decision rendered in English. Fundamental freedoms must be conceptually distinguished from language rights, a proposition also long-since established by the Supreme Court of Canada.
