Official Languages before the Courts – ethical obligations of judges and lawyers

Posted: 05/09/2019

From left to right: Justice Paul Rouleau, Justice Julie Thorburn, Christine Mainville, Sherif Foda and prof. Alain Roussy

On March 20, during Francophonie week, the Law Society held a CPD training session entirely in French, with the co-operation of pratiquO and AJEFO, two major partners of the French-speaking legal community.

The presentation focused mainly on the Mazraani case. The speakers emphasized the importance and the impact of this decision on the interpretations of the laws in Ontario. The decision was analyzed in light of the differences between the linguistic right systems of Canada and Ontario.

In Mazraani v. Industrial Alliance Insurance and Financial Services Inc. Mr. Mazraani was working as an insurance representative for Industrial Alliance. After his contract with Industrial Alliance—which stipulated that he was self‑employed—was terminated, Mr. Mazraani asked the Canada Employment Insurance Commission to consider this employment to be insurable employment so that he could obtain employment insurance benefits. The Commission refused to do so, and its refusal was upheld by the Canada Revenue Agency. Mr. Mazraani took the case to the Tax Court of Canada (“TCC”). Because the case was calling its business model into question, Industrial Alliance intervened as a party in the TCC, and it also examined most of the witnesses and presented the legal arguments in support of the position that M’s contract was a contract for services and not a contract of employment.

At the hearing in the TCC, the first witness for Industrial Alliance stated that he wished to testify in French, but Mr. Mazraani told the judge that he would need an interpreter. The judge informed counsel for Industrial that if the witness testified in French, the hearing would have to be adjourned until another day so that an interpreter could attend. Further to a suggestion by counsel for Industrial, the witness testified in English, using a few words in French where necessary. During the rest of the hearing, some of the other witnesses as well as counsel for Industrial also indicated that they wanted to speak in French, but the judge asked them to speak in English instead. He no longer mentioned the possibility of calling in an interpreter. The judge decided the appeal in Mr. Mazraani’s favour. Industrial appealed the TCC’s decision on the ground that the language rights of its witnesses and counsel had been violated. The judge at the first hearing suggested that the witnesses had played on words and syntax to avoid telling the whole truth and he blamed them for not being completely candid and making misleading statements, in light of contradictions in their testimonies and their choice of words, which was imprecise. The judge did not take into account that they were testifying in a language that was not their first language.

Industrial appealed TCC’s judgment because the linguistic rights of its witnesses and its counsel had been violated. The Federal Court of Appeal allowed the appeal and ordered a new hearing before a different judge. The appeal to the Supreme Court was dismissed on the grounds that the language rights of several witnesses and counsel for Industrial had been violated. The Federal Court of Appeal also advised that the requests to speak in French should not have been treated as accommodation requests, but as the legitimate exercise of their protected right to speak in the official language of their choice. This decision applies to the federal courts and pertains directly to several tribunals.

This Supreme Court decision is an important one in case law, as it was unanimous and represented the first time the SCC addressed sections 14 and 15 of the Official Languages Act, i.e. that the right to speak in the official language of one’s choice before the courts has nothing to do with the capacity to speak well in French or in English.

Also, this decision promotes the rights of French-speaking minorities. In it, the court often cites the principles of the Beaulac case and it could have an impact on the interpretation of the laws that apply to Ontario. Moreover, the remedy standard could well be a new hearing when language rights are violated, although judges could have other factors to consider.

Ethical Obligations of Lawyers

The CPD panel presented a brief history of the provisions regarding language rights. In 2001, Ontario was the first Canadian province, even before New Brunswick, to have commentaries on language rights in the province’s Law Society’s Rules of Professional Conduct. In 2015, the Federation of Law Societies of Canada added provisions on language rights and now, all common law provinces, except Prince Edward Island, have adopted such provisions. The Model Code of Professional Conduct of the Federation has become the standard. Quebec, however, has not adopted the model code and does not have anything on language rights.

In Mazraani, the Supreme Court did not address the rules of professional conduct applying to language rights in the other provinces, but referred to what pertains to language rights in the Code of Professional Conduct of the Barreau du Québec to say that lawyers have an obligation to act in the best interests of their clients. These duties could be violated should the lawyer fail to inform his or her client and the witnesses who are called of their rights, or to insist personally on arguing in the official language in which he or she can serve the client properly. In this generous interpretation, the Court seems to conclude that the “best interests” include the obligation to advise clients of their language right. It goes even further than the Rules of Professional Conduct of the Law Society of Ontario, by including that right for the witnesses.

Obligations in Ontario

On March 20, the panel cited two relevant rules of the Rules of Professional Conduct of the Law Society of Ontario: one is to advise a client of the client’s right to use French (3.2-2A) and the other is about the competency of the lawyer to provide the required service in French (3.2-2B). The panel wondered why the rule continues to state “when appropriate,” which may mitigate the obligation.