The Ontario Court of Appeal has found a French-speaking man’s “quasi-constitutional” right to have a bilingual proceeding was denied by a Superior Court judge, and has overturned the lower court’s dismissal of his case.
“English and French are the official languages of the courts in Ontario, and the court has a responsibility to ensure compliance with language rights under s. 126 of the Courts of Justice Act,” wrote Justice Paul Rouleau for the appeal court panel that also included justices Karen Weiler and Robert Blair.
“Violation of these rights, which are quasi-constitutional in nature, constitutes material prejudice to the linguistic minority. A court would be undermining the importance of these rights if, in circumstances where the decision rendered on the merits was correct, the breach of the right to a bilingual proceeding was tolerated and the breach was not remedied.”
The case of Ndem Belende v. Babubhai Patel, Canadian Business Investor Corp., Farzana Nabizada, and Seena Nasrati involved Belende’s motion to rescind the 2006 sale of his property by Patel, a mortgage creditor who sold the property to Nabizada and Nasrati through power of sale. Belende also sought $1.5 million in general damages.
The case was dismissed on March 22, 2007, when a summary judgment was granted to Nabizada and Nasrati. Patel and Canadian Business Investor Corp. did not take part in that motion, and the case involving them continues.
Two motions in Belende’s case, which was a bilingual proceeding, were set for Jan. 11, 2007. But when no bilingual judge was available to hear the motions, Belende’s agent asked for the matters to be adjourned until a date when one was available.
The judge denied the request for adjournment and heard the motions, which included a request to dismiss the claim. The judge believed that Belende was “attempting to manipulate the bilingual obligation of provincial laws to his own purpose,” according to Rouleau’s decision.
The judge said Belende’s actions led to the unavailability of a bilingual judge, and that he had objected to 16 different judges based on competence in French. The judge said the only bilingual judges available to hear the motions refused due to past complaints about them from Belende.
To get Belende’s side of the case, the judge relied on help from the plaintiffs’ lawyer and a translation of Belende’s written submissions, according to Rouleau. A courtroom interpreter also was available for Belende.
After hearing the motions, the judge dismissed the case and a cross-motion by Belende was not heard, wrote Rouleau.
At the appeal court, Belende argued that his “fundamental right” to a bilingual judge had been violated.
The defendants’ counsel, Lee Akazaki, argued that the appeal should be dismissed for a number of reasons: the motion judge was right to refuse the adjournment, because Belende abused the process and thereby prevented a bilingual judge from hearing the motions, warranting a denial of his right to a bilingual judge; and, otherwise, the appeal should be dismissed because Belende didn’t suffer any prejudice, according to the ruling.
The appeal court found that Belende’s complaints about the language skills of judges in the Toronto region doesn’t mean that those judges can’t hear a case involving him, noting the motion judge proceeded to hear the motions despite Belende’s complaints. The court also found that a judge facing such an allegation of bias “should receive supporting evidence and then decide, on a case-by-case basis, whether to recuse himself or herself.”
Rouleau also said the court had ways to deal with any abuse of process concerns other than by denying the right to a bilingual proceeding: “For example, the court may deny the litigant’s application for an adjournment, stay the proceedings, or find the abuse to constitute a contempt of court. Moreover, the court may also prohibit a vexatious litigant from continuing the proceedings or initiating others.”
The appeal court also distinguished the right to a bilingual hearing.
“It is not a procedural right put into place to ensure respect for the principles of fundamental justice or the right to a fair trial,” wrote Rouleau, adding that the rights also aim to protect official language minorities, as noted in the 1999 Supreme Court of Canada case R. v. Beaulac.
However, the judgment noted Belende’s actions in the case.
“To a certain extent, it would appear that he is responsible for some of the difficulties which arose in this case,” wrote Rouleau. “[T]he appellant should appreciate that the judges targeted by his criticisms will inevitably be hearing the various motions and proceedings in which he is involved.”
In his decision, Rouleau also noted that Coulter Osborne’s Civil Justice Reform Project report pointed to a need for more bilingual judges, particularly in Toronto. Osborne urged that future court appointments keep this need in mind.
Rouleau said, “It is somewhat troubling that although the motions below were brought as part of a bilingual proceeding with sufficient notice, no bilingual judge was available to hear them.”
There are currently four bilingual judges in Toronto for the Court of Appeal, five in the Superior Court, five in the Ontario Court of Justice, and four justices of the peace who speak both official languages. Justice Andra Pollak is the most recent bilingual judge appointed in the Toronto region, named to the Superior Court on Feb. 20.
Ontario Ministry of the Attorney General spokesman Brendan Crawley says the ministry has raised the issue of the need for more bilingual judges with the federal government.
Sonia Ouellet, executive director of the Association des juristes d’expression franÃ§aise de l’Ontario, says there is a need for more bilingual judges throughout Ontario. She says it’s vital for people to communicate in their first language on important legal matters.
“As soon as it becomes emotional and there are serious allegations or consequences to this court proceeding, an individual will feel more comfortable in their own language,” says Ouellet. “It’s like talking about your health or money.”