Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia

Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia
Collection
Supreme Court Judgments
Date
2013-07-26
Neutral citation
2013 SCC 42
Report
[2013] 2 SCR 774
Case number
34908
Judges
McLachlin, Beverley; LeBel, Louis; Abella, Rosalie Silberman; Rothstein, Marshall; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard
On appeal from
British Columbia
Subjects
Courts
Notes
SCC Case Information: 34908
Decision Content
SUPREME COURT OF CANADA
Citation: Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2013 SCC 42, [2013] 2 S.C.R. 774
Date: 20130726
Docket: 34908
Between:
Conseil scolaire francophone de la Colombie-Britannique, Hélène Reid, Paul Rostagno, Annette Azar-Diehl, Pierre Massicotte, Line Beauchemin, Alain Milot, Mélanie Boucher, Valérie Walters, Caroline Bédard, Lise Buitendyk, Isabelle Chenail, Kim Gerry, Louise Baldo, Nicole Leblanc, Guy Bourbeau, Suzanne Martin, Lise Séguin, Kim Davis, Valérie Sicotte, Chantal Ricard, Nadie Savard, Marie-Christine Wilson, Stéphane Perron, Marie-Nicole Dubois, Bruno Calvignac, Carine Hutchinson, Jackie Pallard, Kathleen Bayzand, Guy Champoux, Rachel Chirico, Cate Korinth, Ann Quarterman and Caroline Rousselle
Appellants
and
Her Majesty The Queen in Right of the Province of British Columbia and Minister of Education of the Province of British Columbia
Respondents
- and -
Attorney General of Ontario, Commissioner of Official Languages of Canada and Association des juristes d’expression française de la Colombie-Britannique
Interveners
Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner JJ.
Reasons for Judgment:
(paras. 1 to 65)
Dissenting Reasons:
(paras. 66 to 114)
Wagner J. (McLachlin C.J. and Rothstein and Moldaver JJ. concurring)
Karakatsanis J. (LeBel and Abella JJ. concurring)
Conseil scolaire francophone de la Colombie-Britannique v. British Columbia, 2013 SCC 42, [2013] 2 S.C.R. 774
Conseil scolaire francophone de la Colombie‑Britannique,
Hélène Reid, Paul Rostagno, Annette Azar‑Diehl, Pierre
Massicotte, Line Beauchemin, Alain Milot, Mélanie Boucher,
Valérie Walters, Caroline Bédard, Lise Buitendyk, Isabelle
Chenail, Kim Gerry, Louise Baldo, Nicole Leblanc, Guy
Bourbeau, Suzanne Martin, Lise Séguin, Kim Davis, Valérie
Sicotte, Chantal Ricard, Nadie Savard, Marie‑Christine
Wilson, Stéphane Perron, Marie‑Nicole Dubois, Bruno
Calvignac, Carine Hutchinson, Jackie Pallard, Kathleen
Bayzand, Guy Champoux, Rachel Chirico, Cate Korinth,
Ann Quarterman and Caroline Rousselle Appellants
v.
Her Majesty The Queen in Right of the Province of
British Columbia and Minister of Education of the
Province of British Columbia Respondents
and
Attorney General of Ontario, Commissioner of Official
Languages of Canada and Association des juristes
d’expression française de la Colombie‑Britannique Interveners
Indexed as: Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia
2013 SCC 42
File No.: 34908.
2013: April 15; 2013: July 26.
Present: McLachlin C.J. and LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner JJ.
on appeal from the court of appeal for british columbia
Courts — Rules of court — Affidavits — Language of exhibits — 1731 English Act received into B.C. law providing English as language of court “proceedings” — B.C. Supreme Court Civil Rules also requiring documents “prepared for use in the court” be in English unless impracticable — French language school board seeking to file affidavits attaching exhibits prepared in French prior to litigation — Whether 1731 Act or B.C. rules preclude admission of exhibits prepared in French without English translation — Whether admitting exhibits in French within inherent jurisdiction of superior courts to control own processes — Whether B.C. Civil Rules limit exercise of inherent jurisdiction — Supreme Court Civil Rules, B.C. Reg. 168/2009, r. 22‑3(2).
In an action alleging the violation of French language education rights as guaranteed by the Charter, a B.C. French language school board (the “Conseil”), and a federation of Francophone parents, brought an interlocutory application to have exhibits to affidavits written in French introduced into evidence in order to demonstrate they had standing to bring the action. They intended to rely on the content of the exhibits, prepared before the litigation was contemplated, which described their respective roles in the protection and promotion of French‑language education in the province. British Columbia objected to the admission of the exhibits without accompanying English translations on the basis of an old English statute received into the colonial law of B.C. (the “1731 Act”), as well as Rule 22‑3 of the B.C. Supreme Court Civil Rules, B.C. Reg. 168/2009 (“Civil Rules”), which respectively require court “proceedings” and any “document prepared for use in the court” to be in English. The chambers judge denied the application. The Court of Appeal dismissed the appeal.
Held (LeBel, Abella and Karakatsanis JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Rothstein, Moldaver and Wagner JJ.: The B.C. legislature has exercised its power to regulate the language to be used in court proceedings in that province by adopting legislative provisions which require civil “proceedings”, which includes exhibits to affidavits filed as part of those proceedings, to be in English. In doing so, the legislature has ousted the inherent jurisdiction of the courts and, therefore, no residual discretion exists to admit documents in other languages without an English translation.
The 1731 Act was received into B.C. law and is in force in that province, pursuant to the requirements of s. 2 of the Law and Equity Act, R.S.B.C. 1996, c. 253: the 1731 Act was in force in England on November 19, 1858, it was applicable to the local circumstances in B.C. at the time, and it has not been modified by subsequent legislation having the force of law. As such, the test for determining whether a law is applicable is based on its suitability and not on a more stringent test of necessity. Furthermore, applicability is to be assessed as of the date of reception and not as of the date the cause of action arose. This approach results in valuable certainty in the law and is also respectful of the courts’ role of interpreting statutes and of the legislature’s role of modifying them to reflect changing circumstances. Given that in 1858 the government in B.C. operated in English, and English was the common language of settlers, nothing about the circumstances in the province would have made a rule requiring that court proceedings be conducted in English unsuitable.
In addition, the legislature has neither expressly repealed or modified the 1731 Act in respect of civil proceedings, nor has it implicitly modified it by “occupying the field” with subsequent legislation. The 1731 Act pertains not only to the language of documents filed in court, but also to that of judgments, orders, trials and evidence. A rule that covers only one aspect of the subject matter while remaining silent on other aspects cannot have the effect of impliedly modifying a received statute. Rules of civil procedure relating only to the documents used in court therefore cannot be said to occupy the entire field of language for court proceedings. This conclusion is reinforced by the fact that since 1965 the B.C. courts have repeatedly endorsed the 1731 Act and the legislature has, rightly or wrongly, declined to act to change the law on language in court proceedings.
Even if the 1731 Act were found not to be applicable in B.C., Rule 22‑3 of the Civil Rules requires that exhibits attached to affidavits and filed in court be in English. Although the exhibits at issue were not prepared for use in court, once the exhibits were attached to the affidavits they became part of a document prepared for use in court. It cannot be possible to circumvent the rule by moving information on which a party seeks to rely from the body of the affidavit into an exhibit. If the party wishes to rely on the content of the exhibits, as opposed to their existence or their authenticity, the exhibits must comply with the rule. Rule 22‑3 therefore limits the court’s inherent jurisdiction to admit documents in languages other than English. Only those documents whose nature renders compliance with the rule impracticable can be admitted. Where, as here, the documents at issue are written in French, there is nothing inherent in them that would render translation into English impracticable, including the large volume of documents in question.
Finally, it is not inconsistent with Charter values for the B.C. legislature to restrict the language of court proceedings to English. The Charter does not require any province other than New Brunswick to provide for court proceedings in both official languages. Although the Charter reflects the importance of language rights, it also reflects the importance of respect for the constitutional powers of the provinces; federalism is one of Canada’s underlying constitutional principles. It would be open to the B.C. legislature to enact legislation to authorize civil proceedings in French, which would no doubt further the values embodied in the language rights provisions of the Charter. However, in the absence of such an initiative, one cannot be imposed by the Court.
Per LeBel, Abella and Karakatsanis JJ. (dissenting): Neither the 1731 Act nor the British Columbia Civil Rules addresses the language of exhibits in court proceedings. In light of the silence of the British Columbia legislature, and pursuant to the court’s inherent jurisdiction, judges of the B.C. Supreme Court may allow French language documents, not prepared for use in court, to be filed in evidence as exhibits where this will ensure the administration of justice according to law in a regular, orderly and effective manner.
Under the received 1731 Act, the prohibition on foreign languages in “proceedings” — no matter how broadly “proceedings” is defined — does not address the language of exhibits filed as evidence, or prevent the tendering or acceptance of a document in a language other than English, even if the oral evidence is in English or translated into English. Given that the scope of the 1731 Act does not include the language of exhibits, it is not necessary to consider whether it has been explicitly or implicitly modified and/or altered by B.C. legislation, by quasi‑constitutional federal legislation, or by the Charter.
Similarly, the Civil Rules do not define “evidence” or “exhibit” and do not directly address the language of the proceedings, other than Rule 22‑3 which states documents “prepared for use in the court” must be in English. The exhibits at issue in this appeal, which include documents relating to the purpose and mission of the Conseil, were created in French long before litigation was contemplated. It could not be reasonably said that they were “prepared for use in the court”. By contrast, the affidavits to which the exhibits are attached were created for the court proceedings and must be in English. Therefore, based on the ordinary meaning of the words of the text, Rule 22‑3 does not apply to documents such as exhibits that, as in this case, were not prepared for litigation purposes.
In the absence of clear and precise statutory language addressing the language in which documents not prepared for use in court must be filed, the British Columbia legislature has not ousted the court’s inherent jurisdiction. Therefore, the B.C. Supreme Court may exercise that jurisdiction to admit French documents if doing so would uphold, protect and fulfil the judicial function of administering justice. The matter should be remitted back to the B.C. Supreme Court accordingly. In deciding whether or not to exercise his or her discretion, the motion judge should consider relevant constitutional and quasi‑constitutional principles, including the status of French as an official language in Canada, the protection of official language minority rights, and the constitutional commitment to safeguarding and promoting both the French and English languages, as well as the specific circumstances of the parties. Here, the Conseil was established by statute of the British Columbia legislature pursuant to s. 23 of the Charter which guarantees French language education rights. The Conseil operates primarily in French. The trial judge, and all parties and their lawyers, except the Province of British Columbia, understand the French language and the underlying litigation is about constitutional French language rights. The motion judge must consider and weigh these and all other relevant factors in exercising the court’s inherent jurisdiction.
Cases Cited
By Wagner J.
Referred to: R. v. Keller, [1966] 2 C.C.C. 380; R. v. Watts, Ex parte Poulin (1968), 69 D.L.R. (2d) 526, aff’d [1969] 3 C.C.C. 118; R. v. Lajoie (1970), 2 C.C.C. (2d) 89; R. v. Pelletier, 2002 BCSC 561 (CanLII); R. v. Mercure, [1988] 1 S.C.R. 234; Uniacke v. Dickson (1848), 1 N.S.R. 287; Scott v. Scott (1970), 2 N.B.R. (2d) 849; McDonnell v. Fédération des Franco‑Colombiens (1985), 69 B.C.L.R. 87; Deeks Sand & Gravel Co. v. The Queen, [1953] 4 D.L.R. 255; Hellens v. Densmore, [1957] S.C.R. 768; Cooper v. Stuart (1889), 14 App. Cas. 286; Sheppard v. Sheppard (1908), 13 B.C.R. 486; Re McKenzie and McKenzie (1970), 11 D.L.R. (3d) 302; Robitaille v. Vancouver Hockey Club Ltd. (1979), 13 B.C.L.R. 309; Boleak v. Boleak, 1999 BCCA 776, 183 D.L.R. (4th) 152; R. v. Pare (1986), 31 C.C.C. (3d) 260; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; R. v. Zundel, [1992] 2 S.C.R. 731; R. v. National Post, 2010 SCC 16, [2010] 1 S.C.R. 477; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Han v. Cho, 2008 BCSC 1208, 88 B.C.L.R. (4th) 193; Bilfinger Berger (Canada) v. Greater Vancouver Water District, 2010 BCSC 1104 (CanLII); R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78.
By Karakatsanis J. (dissenting)
R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78; R. v. Rose, [1998] 3 S.C.R. 262; R. v. Mercure, [1988] 1 S.C.R. 234; Blank v. Canada (Minister of Justice), 2006 SCC 39, [2006] 2 S.C.R. 319; In re Coles and Ravenshear, [1907] 1 K.B. 1; Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773; Mahe v. Alberta, [1990] 1 S.C.R. 342.
Statutes and Regulations Cited
Act that all Proceedings in Courts of Justice within that Part of Great Britain called England, and in the Court of Exchequer in Scotland, shall be in the English Language (G.B.), 1731, 4 Geo. II, c. 26, Preamble.
Canadian Charter of Rights and Freedoms, ss. 16 to 20 , 23 .
Court of Appeal Rules, B.C. Reg. 297/2001, r. 53.
Criminal Code, R.S.C. 1985, c. C‑46, ss. 530 , 530.1 .
English Law Act, R.S.B.C. 1897, c. 115.
English Law Act, R.S.B.C. 1960, c. 129.
English Law Ordinance, 1867, S.B.C. 1867, No. 7.
English Law Ordinance, 1867 (1871), 30 Vict., No. 70.
Evidence Act, R.S.B.C. 1996, c. 124.
Interpretation Act, R.S.B.C. 1996, c. 238, s. 7.
Law and Equity Act, R.S.B.C. 1996, c. 253, s. 2.
Official Languages Act, R.S.C. 1985, c. 31 (4th Supp .), Preamble.
Statute of Uses, 1535, 27 Hen. 8, c. 10.
Supreme Court Civil Rules, B.C. Reg. 168/2009, rr. 1‑1 “document”, “proceeding”, 1‑3, 22‑3(2), (3).
Authors Cited
Black’s Law Dictionary, 9th ed. St. Paul, Minn.: West, 2009, “proceeding”.
Blackstone, William. Commentaries on the Laws of England, vol. 3, by Joseph Chitty, ed. London: W. Walker, 1826.
Blickensderfer, Ulric. Blickensderfer’s Blackstone’s Elements of Law Etc. Chicago: Ulric Blickensderfer, 1889.
Bouck, John C. “Introducing English Statute Law into the Provinces: Time for a Change?” (1979), 57 Can. Bar Rev. 74.
British Columbia. Debates of the Legislative Assembly, 2nd Sess., 29th Parl., March 10, 1971, p. 646.
Cote, J. E. “The Reception of English Law” (1977), 15 Alta. L. Rev. 29.
Hogg, Peter W. Constitutional Law of Canada, 5th ed. Supp., vol. 1. Toronto: Carswell, 2012 (updated 2012, release 1).
Jacob, I. H. “The Inherent Jurisdiction of the Court” (1970), 23 Curr. Legal Probs. 23.
McPherson, Bruce Harvey. The Reception of English Law Abroad. Brisbane, Aust.: Supreme Court of Queensland Library, 2007.
Sullivan, Ruth. Sullivan on the Construction of Statutes, 5th ed. Markham, Ont.: LexisNexis, 2008.
APPEAL from a judgment of the British Columbia Court of Appeal (Newbury, Kirkpatrick, Frankel, Neilson and Bennett JJ.A.), 2012 BCCA 282, 34 B.C.L.R. (5th) 35, 323 B.C.A.C. 270, 550 W.A.C. 270, [2012] 10 W.W.R. 456, 24 C.P.C. (7th) 341, 351 D.L.R. (4th) 727, [2012] B.C.J. No. 1301 (QL), 2012 CarswellBC 1865, affirming a decision of Willcock J., 2011 BCSC 1043, 21 B.C.L.R. (5th) 62, 337 D.L.R. (4th) 45, [2011] B.C.J. No. 1475 (QL), 2011 CarswellBC 2039. Appeal dismissed, LeBel, Abella and Karakatsanis JJ. dissenting.
Robert Grant, Mark C. Power, Jennifer Klinck and Jean‑Pierre Hachey, for the appellants.
Jonathan G. Penner and Karrie Wolfe, for the respondents.
Josh Hunter, for the intervener the Attorney General of Ontario.
Christine Ruest Norrena and Isabelle Bousquet, for the intervener the Commissioner of Official Languages of Canada.
Francis Lamer and Casey Leggett, for the intervener Association des juristes d’expression française de la Colombie‑Britannique.
The judgment of McLachlin C.J. and Rothstein, Moldaver and Wagner JJ. was delivered by
Wagner J. —
I. Introduction
[1] Each of the provinces has the power under the Constitution, subject to certain restrictions, to make laws governing the language to be used in its courts. This power derives from the provinces’ jurisdiction over the administration of justice. The British Columbia legislature has exercised its power to regulate the language to be used in court proceedings in that province by adopting two different legislative provisions which require civil proceedings, including exhibits attached to affidavits filed as part of those proceedings, to be in English.
[2] The appellants ask this Court to hold that the British Columbia courts retain a residual discretion to admit documents in languages other than English without an English translation. For the reasons that follow, I conclude that no such discretion exists. The British Columbia legislature has ousted the inherent jurisdiction of the courts and has required that court proceedings in the province be conducted in English. As a result, this appeal must be dismissed.
II. Facts
[3] This is an appeal from a ruling on an interlocutory application which was brought by the Conseil scolaire francophone de la Colombie-Britannique (“Conseil”) and the Fédération des parents francophones de la Colombie-Britannique (“Fédération”).
[4] The Conseil, the Fédération and numerous individual parents had brought an action against the Province of British Columbia in which they alleged violations of British Columbia’s constitutional obligations under s. 23 of the Canadian Charter of Rights and Freedoms . In the course of the proceedings, British Columbia challenged the standing of the Conseil and the Fédération to bring that action, arguing they are entitled neither to assert linguistic rights nor to bring an action to protect those rights.
[5] In order to demonstrate that they had standing, the Conseil and the Fédération filed affidavits in which they described their respective roles in the protection and promotion of French-language education in the province. Attached to the affidavits were documents in the French language on whose content they intended to rely by tendering them under the business records exception to the hearsay rule. British Columbia objected to the admission of the exhibits without accompanying English translations. The Conseil and the Fédération, in turn, sought a declaration that exhibits in the French language attached to an affidavit could be considered by the court without English translations.
[6] Although the issue of standing has since been decided in the Conseil’s and Fédération’s favour (2012 BCCA 422, 36 B.C.L.R. (5th) 302), this appeal has continued because a decision on whether the British Columbia courts can admit documents in French is relevant to the trial of the action.
III. Judicial History
A. British Columbia Supreme Court, 2011 BCSC 1043, 21 B.C.L.R. (5th) 62
[7] The chambers judge dismissed the application. He considered himself bound by decisions in which the British Columbia courts had held that the language of civil proceedings in that province is English: R. v. Keller, [1966] 2 C.C.C. 380 (B.C.S.C.); R. v. Watts, Ex parte Poulin (1968), 69 D.L.R. (2d) 526 (B.C.S.C.), aff’d [1969] 3 C.C.C. 118 (B.C.C.A.); R. v. Lajoie (1970), 2 C.C.C. (2d) 89 (B.C.S.C.); R. v. Pelletier, 2002 BCSC 561 (CanLII). According to those decisions, the requirement that proceedings in the British Columbia courts be in English derives from an old English statute that has been received into the law of the province by virtue of s. 2 of the Law and Equity Act, R.S.B.C. 1996, c. 253. The English statute in question is entitled An Act that all Proceedings in Courts of Justice within that Part of Great Britain called England, and in the Court of Exchequer in Scotland, shall be in the English Language (G.B.), 1731, 4 Geo. II, c. 26 (the “1731 Act”).
[8] The chambers judge concluded that although untranslated documents can be admitted to prove their existence or their authenticity, such documents cannot be produced as proof of their content unless a translation is provided. Therefore, the 1731 Act applied to the exhibits the Conseil and the Fédération sought to introduce.
[9] The chambers judge held that Rule 22-3 of the Supreme Court Civil Rules, B.C. Reg. 168/2009, which requires that documents prepared for use in court be in English unless the nature of the document renders this impracticable, is a manifestation of the general rule derived from the 1731 Act that the language of the British Columbia courts is English. Whether the impugned exhibits qualified as “documents prepared for use in the court” was therefore irrelevant. Furthermore, assuming that Rule 22-3 applied to these exhibits, the chambers judge held that nothing about their nature rendered their translation impracticable. He accordingly dismissed the application.
B. British Columbia Court of Appeal, 2012 BCCA 282, 34 B.C.L.R. (5th) 35
[10] The Court of Appeal dismissed the appeal from the chambers judge’s decision, holding that the 1731 Act is in force in British Columbia and that civil proceedings must therefore be conducted in English. Applying the test for implied repeal set out in R. v. Mercure, [1988] 1 S.C.R. 234, the Court of Appeal held that the modern procedural legislation has not occupied the field so as to implicitly repeal the 1731 Act. Although s. 530 of the Criminal Code, R.S.C. 1985, c. C-46 , has had the effect of repealing the 1731 Act for criminal trials by giving accused persons in British Columbia and elsewhere in Canada the right to be tried in either official language, the British Columbia legislature has not taken any steps to repeal it with respect to civil proceedings.
[11] The Court of Appeal added that the 1731 Act applies to documentary evidence of the type the Conseil and the Fédération had submitted. Rule 22-3 of the Supreme Court Civil Rules merely confirms that all civil proceedings in British Columbia must be conducted in English.
[12] The Court of Appeal accordingly held that a judge presiding over civil proceedings in British Columbia does not have a discretion to admit documentary evidence in a language other than English without a certified translation.
IV. Analysis
[13] British Columbia has advanced two legislative rules as a result of which, it says, the documents at issue in this case may not be admitted into evidence: the 1731 Act and Rule 22-3 of the Supreme Court Civil Rules. In my view, both of these rules apply, and their effect is that documents submitted to British Columbia courts must either be in English or be accompanied by an English translation.
A. Does the 1731 Act Require That Civil Proceedings in British Columbia Be in English?
(1) Reception of English Law
[14] The reception of English law into various Canadian provinces was an important step in Canada’s legal history. Reception permitted the country’s common law provinces to adopt a common law system without having to “spend nine centuries painfully building up a system of judge-made law”: J. E. Cote, “The Reception of English Law” (1977), 15 Alta. L. Rev. 29, at p. 30.
[15] The reception of English law is a common law principle, and it applies in several Canadian provinces in which it has not even been provided for by provincial statute: see, e.g., Uniacke v. Dickson (1848), 1 N.S.R. 287 (Ch.); Scott v. Scott (1970), 2 N.B.R. (2d) 849 (S.C., App. Div.). At common law, reception was said to take place as a result of the presence of British subjects in a new territory: Cote, at p. 35. That is to say, British subjects “carr[ied]” English law with them as they settled in the colonies: Cote, at p. 47.
[16] This common law principle has been codified in a number of Canadian provinces, including British Columbia. The principle of reception was originally codified in mainland British Columbia by virtue of a proclamation of the Governor of the Colony of British Columbia, Sir James Douglas, dated November 19, 1858. This was subsequently expanded to cover the entirety of the unified Colony of British Columbia in the The English Law Ordinance, 1867, S.B.C. 1867, No. 7. The British Columbia legislature has repeatedly confirmed this codification since the province joined Confederation: see, e.g., English Law Ordinance, 1867 (1871), 30 Vict., No. 70; English Law Act, R.S.B.C. 1897, c. 115; English Law Act, R.S.B.C. 1960, c. 129. Currently, the reception of English law in British Columbia is governed by the Law and Equity Act, s. 2 of which reads as follows:
2 Subject to section 3, the Civil and Criminal Laws of England, as they existed on November 19, 1858, so far as they are not from local circumstances inapplicable, are in force in British Columbia, but those laws must be held to be modified and altered by all legislation that has the force of law in British Columbia or in any former Colony comprised within its geographical limits.
[17] There are two criteria for an English statute to be received into law in British Columbia: (1) it must have been in force in England on November 19, 1858; and (2) it must be applicable to local circumstances. Further, in interpreting any received law, a court must consider whether that law has been modified by legislation having the force of law in British Columbia. I will return to these issues after discussing the scope of the 1731 Act itself.
(2) Does the 1731 Act Apply to Exhibits Attached to Affidavits?
[18] As a preliminary matter, the appellants allege that even if the 1731 Act is applicable in British Columbia, it does not have the effect of requiring that documentary evidence be presented in English. With respect, I cannot agree. It is clear from the words of the 1731 Act that it applies to a specific set of listed documents, but also to all “proceedings”, which includes the admission of evidence.
[19] The Preamble to the 1731 Act requires all the following to be in English:
. . . all Writs, Process and Returns thereof, and Proceedings thereon, and all Pleadings, Rules, Orders, Indictments, Informations, Inquisitions, Presentments, Verdicts, Prohibitions, Certificates, and all Patents, Charters, Pardons, Commissions, Records, Judgments, Statutes, Recognizances, Bonds, Rolls, Entries, Fines and Recoveries, and all Proceedings relating thereunto, and all Proceedings of Courts Leet, Courts Baron and Customary Courts, and all Copies thereof, and all Proceedings whatsoever . . . .
The appellants argue that the words “Proceedings thereon”, “Proceedings relating thereunto” and “all Proceedings whatsoever” should be taken to be limited to procedural aspects of an action. Although I accept the appellants’ submission that there is a difference between procedure and evidence, they have submitted no arguments to explain why the word “proceedings” should be read as equivalent to “procedure”. The meaning of the word “procedure” is therefore not relevant to the interpretation of the 1731 Act. In any event, even if it were the case that the 1731 Act applied only to procedural law, there was a time when the law of procedure was considered to include what we would now call the law of evidence: U. Blickensderfer, Blickensderfer’s Blackstone’s Elements of Law Etc. (1889), at pp. 220-21.
[20] As to the meaning of the term “proceeding”, the appellants themselves note that Black’s Law Dictionary (9th ed. 2009), defines it as follows:
The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment. [Emphasis added; p. 1324.]
In my view, therefore, “proceedings” include the taking of evidence for the purpose of hearing a motion or conducting a trial, and this includes documentary evidence filed as an exhibit attached to an affidavit. The taking of evidence is an act that takes place between the commencement of the action and the entry of judgment.
[21] This view is confirmed by other sources, including W. Blackstone, Commentaries on the Laws of England, vol. 3, by J. Chitty, ed. (1826), according to which the proceedings of an action include:
1. The original writ: 2. The process: 3. The pleadings: 4. The issue or demurrer: 5. The trial: 6. The judgment, and its incidents: 7. The proceedings in the nature of appeals: 8. The execution. [pp. 271-72]
The subsequent discussion in the Commentaries about the “proceedings” of a trial includes the taking of evidence: pp. 349-85. This confirms that the term “proceedings” should be understood to include testimony and documentary evidence.
[22] The appellants further suggest that the expressions “Proceedings thereon”, “Proceedings relating thereunto” and “all Proceedings whatsoever” should be restricted by the limited class (ejusdem generis) presumption. They argue that the lists of items that come before these general expressions do not include evidence or exhibits, and that the expressions themselves must therefore be interpreted as being similarly limited.
[23] This argument must fail, however, for two reasons. First, I would question whether the limited class presumption should apply where the item at issue appears to be separated from the main list. When applying this presumption, “attention must be paid to the grammatical structure of the provision in question”: R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at p. 239. In this case, the relevant passages from the 1731 Act should be considered to form three distinct groups that are separated from one another by the word “and”:
(1) all Writs, Process and Returns thereof, and Proceedings thereon, and
(2) all Pleadings, Rules, Orders, Indictments, Informations, Inquisitions, Presentments, Verdicts, Prohibitions, Certificates, and all Patents, Charters, Pardons, Commissions, Records, Judgments, Statutes, Recognizances, Bonds, Rolls, Entries, Fines and Recoveries, and all Proceedings relating thereunto, and
(3) all Proceedings of Courts Leet, Courts Baron and Customary Courts, and all Copies thereof, and all Proceedings whatsoever . . . .
Each of these groups has two parts: a list of documents or courts and a general clause about “Proceedings”. It is not clear to me that the references to proceedings should be taken to be part of the lists in question, given that for each group, the last two items of the list are separated by the conjunction “and” (e.g. “all Writs, Process and Returns thereof”), which precedes an “and” that separates the clause about proceedings from the list (e.g. “and Proceedings thereon”).
[24] Second, the general word “Proceedings” is never used in isolation, but always forms part of an expression such as “Proceedings thereon” or “Proceedings relating thereunto”. These expressions convey an intention to include not just specific documents, but also any actions taken in relation to them.
[25] Finally, the appellants argue that, since the 1731 Act does not explicitly permit the admission of translations into evidence, no translations can be admitted, which renders the law absurd. I am unable to see how a law that requires documents to be in a particular language can have the effect of excluding translations into that language. I cannot accept this argument.
[26] In conclusion, if the 1731 Act applies in British Columbia, I am of the view that it has the effect of requiring that all documents filed in court proceedings be in English or be accompanied by an English translation.
(3) Is the 1731 Act Inapplicable in British Columbia?
[27] Section 2 of the Law and Equity Act provides that “the Civil and Criminal Laws of England, as they existed on November 19, 1858, so far as they are not from local circumstances inapplicable, are in force in British Columbia”.
[28] The parties agree that the 1731 Act existed and was in force in England on November 19, 1858. They disagree, however, about whether the 1731 Act is “from local circumstances inapplicable”. The appellants ask the Court to adopt a strict test for applicability according to which every received statute must be both necessary and applicable. The appellants also argue that applicability should be assessed as of the time when the facts of the case arose rather than as of the date of reception, November 19, 1858.
[29] Neither of these submissions is compelling. Necessity is not a requirement for the reception of English law. Certainty in the legal system is, as the appellants acknowledge, a desirable outcome, but certainty cannot be obtained if the status of received law must be reconsidered each and every time a party seeks to rely on it. I therefore conclude that the test for determining whether such law is applicable should be based on its suitability, and that this should be assessed as of the date of reception.
(a) What Does Applicability Entail?
[30] Whether a received statute is applicable should be assessed in terms of its suitability, as opposed to the more stringent test proposed by the appellants. The appellants urge the Court to take a narrow view of applicability, and to require that any received statute be necessary in order to be applicable. The appellants further argue that its necessity should be assessed purposively by considering whether the mischief the statute was intended to remedy in England exists in British Columbia. Such a test is undesirable, because under it, the assessment of applicability would depend on historical reductionism.
[31] The appellants rely on Uniacke, a decision of the Nova Scotia Court of Chancery, to support their claim that necessity must be considered in determining whether a statute is applicable. However, necessity has never been considered to be part of the test for applicability in British Columbia: see, e.g., McDonnell v. Fédération des Franco-Colombiens (1985), 69 B.C.L.R. 87 (Co. Ct.); Deeks Sand & Gravel Co. v. The Queen, [1953] 4 D.L.R. 255 (B.C.S.C.). Nor did this Court choose to adopt a necessity test for reception in Hellens v. Densmore, [1957] S.C.R. 768, at pp. 782-83.
[32] Moreover, a requirement that necessity be assessed by comparing the historical circumstances in England at the time of the statute’s enactment to circumstances in British Columbia would unduly narrow the range of statutes that can be received. If reception depended on comparing the very specific historical circumstances that motivated a statute, almost no statutes would be received, because it is unlikely that the exact same social circumstances would have existed in colonies that were settled after relevant social structures had been abandoned in England: B. H. McPherson, The Reception of English Law Abroad (2007), at p. 378.
[33] This problem can be illustrated by considering one of the statutes that the appellants accept has been received, namely the Statute of Uses, 1535, 27 Hen. 8, c. 10. The appellants agree that the Statute of Uses is applicable and has been received in British Columbia (A.F., at para. 45). Yet the Statute of Uses was adopted to deal with the proliferation of the use, a device to avoid feudal taxes. Since feudalism, and indeed the use, never existed in British Columbia, it would be hard to argue that the Statute of Uses is necessary on the basis of the appellants’ own view of necessity. The test for reception cannot therefore be so narrow as to require proof of necessity as the appellants propose.
[34] It is my view that the Law and Equity Act, rather than requiring proof of necessity, requires that statutes be considered to be received unless they are unsuitable to local circumstances in British Columbia. A suitability test is consistent with the authorities and eliminates the need to engage in detailed historical comparisons or to speculate about the legislative intent behind a statute that was adopted hundreds of years ago. According to McPherson, the test is “whether the rule of English law can reasonably be applied or is suitable, or in its nature not unsuitable, to local needs, and not whether it would be beneficial or convenient to apply it”: pp. 373-74. Peter Hogg also discusses the common law rule for determining whether received law is applicable in terms of suitability, stating that received laws “did not include those laws that were not suited to the circumstances of the colony”: P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), at s. 2.2(b).
(b) As of What Date Must Applicability Be Assessed?
[35] In my view, whether a received statute is applicable must be assessed as of the date it was received, which was November 19, 1858, in British Columbia. To accept the appellants’ argument that a statute’s applicability should be reassessed each time a party attempts to rely on it would be to introduce an unacceptable level of uncertainty into the law and to impose significant and unnecessary burdens on litigants. Moreover, it would be inconsistent with the approach Canadian courts have generally adopted for assessing applicability.
[36] Section 2 of the Law and Equity Act represents the most recent version of a codification of the common law principle of reception in British Columbia: J. C. Bouck, “Introducing English Statute Law into the Provinces: Time for a Change?” (1979), 57 Can. Bar Rev. 74, at pp. 76-77. When a common law principle is codified, there is a presumption that “its substance remains the same”: Sullivan, at p. 436. And where such a principle has been codified, it remains appropriate to refer to the common law to interpret the legislation: Sullivan, at p. 436. In interpreting s. 2 of the Law and Equity Act, therefore, the common law approach to the time when applicability is assessed should be considered.
[37] I accept McPherson’s view that the “balance of authority” outside the United States favours a “full inheritance” approach under which applicability is assessed once and for all as of the date of reception: pp. 374-75. However, I also agree with the modification to this approach proposed by the Privy Council in Cooper v. Stuart (1889), 14 App. Cas. 286, which this Court adopted in Hellens, to the effect that statutes that are reasonably capable of being applied are considered to be “dormant” until such time as circumstances arise that might call for their application: McPherson, at p. 376.
[38] Indeed, the British Columbia courts have clearly tended toward the view that applicability should be assessed as of 1858: see, e.g., Sheppard v. Sheppard (1908), 13 B.C.R. 486 (S.C.); Re McKenzie and McKenzie (1970), 11 D.L.R. (3d) 302 (B.C.C.A); Poulin.
[39] This approach results in valuable certainty in the law, as a statute’s