Supreme Court

Civil Procedure

Nothing inherent in documents that would render translation impracticable

Prior to litigation, exhibits to affidavits written in French prepared by appellants describing their roles in protection of French-language education in British Columbia. In subsequent action alleging violation of French language education rights as guaranteed by Charter, appellants applied to have exhibits introduced into evidence to demonstrate they had standing. Based on English statute received into colonial law of B.C. (“1731 Act”) and Rule 22-3 of Supreme Court Civil Rules (B.C.), which require court “proceedings” and any “document prepared for use in the court” to be in English, British Columbia objected to admission of exhibits without accompanying translations. Chambers judge denied application and appeals dismissed. British Columbia legislature repeatedly confirmed codification of principle relating to reception of English law. Clear wording of 1731 Act indicates application to specific listed documents, but also to “proceedings”, including admission of evidence. “Proceedings thereon”, “proceedings relating thereto” and “all proceedings whatsoever” not limited to procedural aspects but include taking of evidence. Nor should these words be restricted by limited class presumption, which does not apply where item at issue separated from main list. Law and Equity Act (B.C.), provides that laws of England “as they existed on November 19, 1858, so far as they are not from local circumstances inapplicable, are in force”. Test for applicability based on suitability as of date of reception, not necessity. 1731 Act satisfied test. At that time in British Columbia, government operated in English; rule requiring court proceedings in English not unsuitable. 1731 Act received into law and not modified either explicitly or implicitly. Implied repeal occurs if subsequent legislation occupies field but no legislation occupied field of 1731 Act in context of civil proceedings. Subject matter of 1731 Act is language used in court proceedings. Rule 22-3 of Supreme Court Civil Rules and Rule 53 of Court of Appeal Rules (B.C.), relate to documents used in court but do not occupy field of language for court proceedings. Charter reflects importance of language rights but provides only that legislatures may act to advance use of English and French and court should not impose such initiative. Rule 22-3 requires exhibits in English. Exhibits became part of document prepared for use court once attached to affidavits. Discretion to admit documents if compliance “impracticable” but nothing inherent in documents that would render translation impracticable.

Conseil scolaire francophone de la Colombie-Britannique v. British Columbia (Jul. 26, 2013, S.C.C., McLachlin C.J.C., LeBel J., Abella J., Rothstein J., Moldaver J., Karakatsanis J., and Wagner J., File No. 34908) Decision at 216 A.C.W.S. (3d) 60 was affirmed.  229 A.C.W.S. (3d) 642.

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