Federal Appeal


Tax

Income Tax

Employment income

Judge favouring English over French violating official language rights

Proceedings were triggered by Canada Revenue Agency determination that individual did not hold insurable employment. Minister of National Revenue’ s determination was challenged successfully by individual before Tax Court of Canada (TCC). Individual, who was self-represented before TCC, submitted his notice of appeal in English. Insurance company (employer) submitted its notice of intervention in French. Language issues arose when counsel for insurance company indicated that his first witness, M, would be testifying in French. In response, individual clearly indicated he would need interpreter; instead, judge granted break for counsel to devise pragmatic compromise, which he accepted. Counsel proposed that M testify in English, and he be permitted to express himself in French on technical issues, which could be translated in English. Insurance company appealed TCC decision. Appeal allowed. Constitutional and quasi-constitutional official language rights of witnesses, counsel, as well as individual’s rights were all violated in course of hearing before TCC; it was unnecessary to determine whether individual was engaged in insurable employment. In accepting compromise, TCC judge failed to uphold his positive duty to ensure that witnesses were heard in official language of their choice. Another violation of official language rights resulted from Judge’s treatment of witness, C, who expressed desire to speak in French. Judge interrupted witness examination to request that it be conducted in English; rather than acceding to C’s request asking to reply in French, as required, judge focused on individual’s inability to understand French. During course of proceedings before TCC, counsel and other witnesses were treated similarly and were denied their right to choose to speak in French because of their English language skills. In conducting proceedings, judge favoured English over French in order to accommodate individual’s limited understanding of French; this resulted in violation of counsel’s and witnesses’ official language rights. Judge exerted subtle pressure on counsel and witnesses to forego their right to speak in official language of their choice. Efforts of judge to be pragmatic in finding ways around adjourning and securing interpretation services resulted not only in violation of official language rights of individual, counsel and witnesses. Judge’s failure to exercise his duty to ensure that official language rights at issue were protected not only resulted in their violation, but further resulted in delays that could have otherwise been avoided by adjournment to secure proper interpretation services.

Industrielle Alliance, Assurance et Services Financiers inc. v. Mazraani (2017), 2017 CarswellNat 1457, 2017 CarswellNat 1458, 2017 FCA 80, 2017 CAF 80, Johanne Gauthier J.A., Richard Boivin J.A., and Yves de Montigny J.A. (F.C.A.); reversed (2016), 2016 CarswellNat 1132, 2016 CarswellNat 7151, 2016 TCC 65, 2016 CCI 65, Pierre Archambault J. (T.C.C. [Employment Insurance]).

 


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