3.2 Language rights in civil proceedings before the Supreme Court of the Yukon Territory
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Kilrich Industries Ltd. v. Halotier83
In this case, the Court of Appeal for the Yukon Territory considered the scope of French language rights in civil proceedings before the Supreme Court of the Yukon Territory, particularly, the application of sections 4, 5 and 6 of the Languages Act.84
The appellant, Mr. Halotier, whose mother tongue is French, was born, raised and educated in France. In April 2000, he moved to the Yukon and began the construction of a bed and breakfast. He purchased building materials and other supplies on credit from the respondent, Kilrich Industries Ltd. After paying most of the cost of the supplies, the appellant refused to pay the final invoice, claiming that some of the materials supplied were deficient and caused damage to the building he was constructing. The respondent instituted legal proceedings against the appellant, and Gower J. of the Supreme Court of the Yukon Territory granted a summary judgment in favour of the respondent.
Mr. Halotier appealed the decision, contesting the procedures leading up to and surrounding the summary trial on the ground that his rights under the Languages Act had been violated. The appellant argued that because the Rules of Court85 were not available to him in French, he was not given fair opportunity to present a defence, and "when he finally came to understand the procedure at the summary trial, he was not permitted an adjournment to obtain legal advice." He also maintained that "he was unable to speak French and be understood by the presiding judge."86
Huddart J.A. of the Court of Appeal began her analysis by reviewing the circumstances leading up to and including the disposition of the case. The appellant was not provided with the forms or any part of the Rules of Court in French (at the time, an up-to-date copy of the Rules of Court in French did not exist); he therefore required assistance to complete the English forms. The appellant requested the presence of a French-speaking judge or an interpreter at both the settlement conference and at trial. Although the deputy clerk informed him an interpreter would be provided during the settlement conference, no one was made available and the appellant had to rely on the assistance of a friend for translation. In addition, at trial, interpretation was made available, but it was provided by a bilingual volunteer who worked as legislative counsel for the Yukon Department of Justice. Finally, regarding the transcripts of the hearing, the first transcript provided to the appellant included only what was said in English. After further requests, the appellant received a transcript of what was said in both French and English—unfortunately, it contained a number of gaps where much of what was said was "indiscernible."
Huddart J.A. briefly reviewed the evolution of French-language rights in the Yukon Territory leading up to the enactment of the Languages Act, and concluded that its terms "suggest that it was a compromise that sought both to place Canada’s two official languages on a quasi-constitutional footing in the Yukon and to afford protections similar in principle to the language rights contained in the Canadian Charter of Rights and Freedoms and s. 133 of the Constitution Act, 1867."87 Huddart J.A. then proceeded to address the questions at issue, summarized as the following six questions.
i. Should the Languages Act be given a large, liberal and purposive interpretation?
After reviewing the relevant case law, Huddart J.A. explained that language rights must be given a broad and purposive interpretation, an approach supported by the underlying constitutional principle of the protection of minority rights, and concluded "the purpose of the Languages Act is to commit the Yukon to official bilingualism."88
ii. Are authorities interpreting similar statutory and constitutional provisions applicable to the Languages Act ?
Huddart J.A. held that "[t]o the extent the wording of the provisions in the Languages Act is similar to language used in the Charter and s. 133 of the Constitution Act, 1867, it follows naturally from their similar purpose that the interpretation of those constitutional provisions will provide considerable guidance in the interpretation of the Languages Act."89 However, she stressed that the interpretation of these provisions is not determinative, and it is important that the Court take into account the unique context of the Yukon in its interpretation.
iii. Do "Acts of the Legislative Assembly and regulations made thereunder" in section 4 include the Rules of Court, forms, practice directives and memoranda and notices to the profession?
Huddart J.A. explained that the Judicature Act established the Rules of Court by incorporating the B.C. Rules directly into the statute, which can be amended by means of practice directives issued by the judges of the Supreme Court. The rules, along with the forms they prescribe and all practice directives issued by the judges of the Supreme Court, have the force of law and are, in effect, delegated legislation. Thus, the Rules of Court must be printed and published in both French and English in order to give meaning and effect to sections 4 and 5 of the Languages Act.
iv. What rights flow from section 5?
Huddart J.A. explained that it was clear from the language of the provision that section 5 grants such rights as the right to file documents with the Yukon Supreme Court Registry in French, the right to use French in communicating orally or in writing with the registry and the right to have his or her words recorded in the official language used. She stated that it necessarily follows that any transcripts issued from the recordings should include testimony in the language in which it was given. Huddart J.A. reiterated that it is necessary for the Court to make its rules (including forms and practice) available to the public in French in the same way it does in English, in order for the right to use English or French to have any meaning. However, citing Société des Acadiens,90 she rejected an interpretation of section 5 of the Languages Act that would impose positive obligations on the Court (i.e. the obligation to provide a bilingual judge, clerk or officer of the court, or an interpreter), opting instead to leave it to the judge’s discretion as part of his or her duty to conduct a fair trial.
v. Is the Senior Judge required to assign a judge who speaks and understands French?
Huddart J.A. rejected the argument that the unwritten constitutional principle of the protection of minority rights requires a bilingual judge to preside over a settlement conference or trial when a party expresses the intention to speak French. She explained that this argument is another way of trying to impose an obligation to communicate or be understood in French, which she had previously considered and rejected in her analysis of section 5. She explained that the power to assign judges on behalf of the Court is a function that directly affects adjudication and is an implicit institutional requirement flowing from sections 96 to 100 of the Constitution Act, 1867.91 As such, the Chief Justice or Senior Judge, when exercising this power, is immune from compulsion by Parliament or the Executive (or another court by means of judicial review). She concluded by stating that if the result of a particular assignment is an unfair trial, then the error can be remedied by way of appeal.
vi. Does section 6 apply to the Yukon Supreme Court Registry?
Section 6(1) of the Languages Act states that "[a]ny member of the public in the Yukon has the right to communicate with, and to receive available services from, any head or central office of an institution of the Legislative Assembly or of the Government of the Yukon in English or French […]."
Huddart J.A. accepted that the Yukon Supreme Court is an "institution" within the meaning of section 6(1) of the Languages Act and that the registry office in Whitehorse is the Court’s "central office," and identified the issue as being "the meaning of ‘the right to communicate with, and to receive available services from’ that office."92 Citing the Supreme Court of Canada decision in Société des Acadiens, she held that "every person has the right to communicate directly in French with a member of the staff of the registry personally, by telephone, in writing and to receive all the services in French that are available to the general public in English."93 However, she found that the record of this case "does not lend itself to the setting of a precise standard for the provision in French of each administrative service."94 She felt that, given "human and financial resources are not unlimited" and that "all service-providing systems will be imperfect in the eyes of someone," an analysis of the obligations under section 6(1) "can only be by way of comparison to services provided in comparable circumstances."95 As such, section 6 requires the registry to provide the same assistance to self-represented French-speaking litigants as it provides to self-represented English-speaking litigants.
Huddart J.A. found that the appellant had established a breach of his language rights and was entitled to a remedy pursuant to section 9 of the Languages Act. Consequently, she granted the appeal, set aside the order of Gower J. and remitted the matter back to the Yukon Supreme Court for a new trial. In addition, she declared the Rules of Court of no force and effect, but suspended the operation of this declaration for a period of 12 months from the date of the release of the judgment to enable the Yukon Supreme Court and Government to comply with the requirements of section 4 of the Languages Act.
The Rules of Court have since been made available in French.
