Written on behalf of Feigenbaum Consulting
In a recent Supreme Court of Canada decision, the top court had to decide whether a hearing in the Tax Court of Canada (“TCC”) that was conducted primarily in English, despite requests by witnesses and counsel to speak in French, had violated the language rights of the parties, witnesses or counsel.
The appellant had worked as an insurance representative for an insurance company in 2012. His contract with the insurance company stipulated that he was self-employed. However, after the contract was terminated, the appellant asked the Canada Employment Insurance Commission to treat his employment as insurable employment in order to obtain employment insurance benefits. The Commission refused to do so, and its refusal was upheld by the Canada Revenue Agency. The appellant then brought his case in front of the TCC.
At the TTC hearing, the insurance company intervened as a party and argued that the appellant’s contract was a contract for services, and not a contract of employment. When the insurance company called its first witness, that witness stated that he wished to testify in French. The judge asked the appellant if he would need an interpreter, and he answered that he would – which would have required a day of adjournment. However, after it was so suggested by counsel for the insurance company, the witness testified in English, using a few words in French where necessary. During the rest of the hearing, other witnesses and counsel for the insurance company also indicated that they wanted to speak in French, but the judge asked them to speak in English and steered all testimony and arguments to English. The judge did not bring up the possibility of using an interpreter after the initial request.
The TCC judge decided in the appellant’s favour, finding that he had been an employee and was entitled to employment insurance benefits.
The insurance companyappealed the TCC’s decision on the ground that the language rights of its witnesses and counsel had been violated. The Federal Court of Appeal allowed the appeal and ordered a new hearing before a different judge.
Two issues were raised in the appeal to the Supreme Court of Canada:
- Were the language rights of the parties, the witnesses or counsel at the hearing in the TCC violated?
- If so, is it appropriate to order a new hearing?
At the outset, the court stated that English and French are the official languages of Canada and that there are a number of laws that protect an individual’s right to speak in the official language of his or her choice in a court of law. The principle behind these rights is “to protect the equal status of Canada’s official languages and to ensure full and equal access to the country’s institutions by Anglophones and Francophones alike.” Language rights are substantive rights, not procedural rights, and the state has a duty to ensure that they are implemented and cannot be interfered with. Therefore, all persons who appear in federal courts must be able to freely exercise their fundamental and substantive right to speak in the official language of their choice.
Language rights are protected by the Constitution Act, 1987 and the Canadian Charter of Rights and Freedoms. Additionally, such rights are protected under the Official Languages Act, which guarantees that any person has the right to use the official language of his or her choice and that each party has the right to an interpreter in a federal court, including the TCC.
The court then stated that:
“[I]t is the judge of the federal court in question who is primarily responsible for upholding the language rights of witnesses, of parties and of any individual who appears before him or her[…] Consequently, a judge cannot ask a person to speak in an official language other than the language of the person’s choice. A request to that effect is in and of itself a violation.”
Applying these principles to the case at hand, the court found that several individuals who participated in this case had their language rights infringed at the hearing in the TCC, finding that “[t]he violations were numerous and, in some cases, serious and repeated, and they brought the administration of justice into disrepute.”
Finally, the court found that the appropriate remedy, as ordered by the Federal Court of Appeal, was an order for a new hearing, because “the violation of the rights of all of these individuals clearly had an impact on the conduct of the hearing and even on its outcome.”
As result, the appeal was dismissed and the Federal Court of Appeal’s order for a new hearing was upheld.
Contact Mark Feigenbaum to learn how he can assist you with your legal or tax matters and provide you with comfort in knowing that you are in highly experienced hands. Prior to forming his law firm, Mark worked in the cross-border tax department of an international Big 4 firm and held accounting management positions in a range of sectors in both Canada and the US. Mark combines this legal, tax, and business knowledge to provide thorough, multi-disciplinary advice and exceptional risk management for his clients. Mark offers services to clients in the U.S., Canada, and around the world. Contact Mark online, or at (905) 695-1269 or toll-free at (877) 275-4792 to book a meeting today.