Mazraani v. Industrial Alliance Insurance and Financial Services Inc.

Mazraani v. Industrial Alliance Insurance and Financial Services Inc.
Collection
Supreme Court Judgments
Date
2018-11-16
Neutral citation
2018 SCC 50
Report
[2018] 3 SCR 261
Case number
37642
Judges
Wagner, Richard; Abella, Rosalie Silberman; Moldaver, Michael J.; Karakatsanis, Andromache; Gascon, Clément; Côté, Suzanne; Brown, Russell; Rowe, Malcolm; Martin, Sheilah
On appeal from
Federal Court of Appeal
Notes
Case in Brief
SCC Case Information
Decision Content
SUPREME COURT OF CANADA
Citation: Mazraani v. Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50, [2018] 3 S.C.R. 261
Appeal heard: May 16, 2018 Judgment rendered: November 16, 2018 Docket: 37642
Between:
Kassem Mazraani
Appellant
and
Industrial Alliance Insurance and Financial Services Inc. and
Minister of National Revenue
Respondents
- and -
Barreau du Québec, Canadian Bar Association, Association des juristes d’expression française de l’Ontario and Commissioner of Official Languages for Canada
Interveners
Official English Translation
Coram: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
Joint Reasons for Judgment: (paras. 1 to 80)
Gascon and Côté JJ. (Wagner C.J. and Abella, Moldaver, Karakatsanis, Brown, Rowe and Martin JJ. concurring)
Mazraani v. Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50, [2018] 3 S.C.R. 261
Kassem Mazraani Appellant
v.
Industrial Alliance Insurance and Financial Services Inc. and
Minister of National Revenue Respondents
and
Barreau du Québec,
Canadian Bar Association,
Association des juristes d’expression française de l’Ontario and
Commissioner of Official Languages for Canada Interveners
Indexed as: Mazraani v. Industrial Alliance Insurance and Financial Services Inc.
2018 SCC 50
File No.: 37642.
2018: May 16; 2018: November 16.
Present: Wagner C.J. and Abella, Moldaver, Karakatsanis, Gascon, Côté, Brown, Rowe and Martin JJ.
on appeal from the federal court of appeal
Constitutional law — Charter of Rights — Official languages — Use of official languages in federal courts — Hearing in Tax Court of Canada conducted primarily in English despite requests by witnesses and by counsel to speak in French — Whether language rights of parties, witnesses or counsel at hearing were violated — If so, determination of appropriate remedy — Constitution Act, 1867, s. 133 — Canadian Charter of Rights and Freedoms, s. 19 — Official Languages Act, R.S.C. 1985, c. 31 (4th Supp .), ss. 14, 15.
In 2012, M was working as an insurance representative for Industrial Alliance Insurance and Financial Services Inc. After his contract with Industrial, which stipulated that he was self‑employed, was terminated, M 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. M took the case to the Tax Court of Canada (“TCC”). Industrial intervened as a party in the TCC because the case was calling its business model into question, 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, when Industrial’s first witness stated that he wished to testify in French, the judge asked M if he would need an interpreter, and M answered that he would. 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 and steered the testimony, and the presentation of counsel’s argument, back to English. He no longer mentioned the possibility of calling in an interpreter. The judge decided the appeal in M’s favour. Industrial appealed the TCC’s decision on the ground that the language rights of its witnesses and counsel had been violated. The Federal Court of Appeal allowed the appeal and ordered a new hearing before a different judge.
Held: The appeal should be dismissed.
The language rights of several witnesses and of counsel for Industrial were violated. A new hearing before a different judge of the TCC is necessary in the circumstances.
All persons who appear in federal courts must be able to freely exercise their fundamental and substantive right to speak in the official language of their choice. Two legislative provisions, namely s. 133 of the Constitution Act, 1867 and s. 19 of the Charter , protect the right to use English and French in those courts, which include the TCC. In addition, the language rights of a quasi‑constitutional nature that are provided for in the Official Languages Act (“OLA ”) govern the exercise of the constitutional rights in federal courts such as the TCC: s. 14 of the OLA guarantees that any person has the right to use the official language of his or her choice, while s. 15 guarantees that each party has the right to an interpreter. The federal courts to which these sections apply must provide the resources and procedures that are needed in order to respond to requests from parties and witnesses under these sections, even where a hearing is conducted in accordance with an informal or simplified procedure. The principles established in R. v. Beaulac, [1999] 1 S.C.R. 768, must guide the interpretation of any right that is intended to protect the equal status of the official languages. Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada. As for the rights provided for in the OLA , they will not help achieve the OLA ’s objectives unless all members of the community can exercise them and are provided with the means to do so.
Judges of the courts in question are required to participate actively in protecting the language rights of the individuals involved. It is they who are primarily responsible for upholding language rights. A purposive reading of s. 19(1) of the Charter requires that the court attach the utmost importance to the protection of each person’s right to speak in the official language of his or her choice. The courts are also responsible for discharging this duty in light of the very words of s. 14 of the OLA . If a judge of one of these courts asks a person to speak in an official language other than the language of the person’s choice, this constitutes a violation of s. 14 of the OLA , s. 19 of the Charter and s. 133 of the Constitution Act, 1867 . Although lawyers have certain ethical duties that could be violated should they fail to inform their clients and the witnesses they call of their language rights, these duties are complementary to that of the judge and do not relieve the judge of his or her responsibilities in this regard. Moreover, the OLA requires that in every case the federal courts provide interpretation services at the request of a party. When a judge of one of these courts sees that one party’s testimony or argument will be presented in an official language the other party does not understand, the judge must inform the other party of his or her right to an interpreter.
Language rights protect a person’s right to make a personal choice to speak in one official language. The right is not a right to speak in one’s mother tongue or in a language that the court deems to be the person’s language: it is the right to make a personal choice. That choice does not depend on external factors such as the person’s command of the chosen language. The courts concerned must protect the free and informed nature of each person’s choice to speak in one official language rather than the other by, in particular, being certain that all witnesses are well aware of their right to speak in the official language of their choice before testifying. The right to speak in one official language is subject to no particular form. The presence of a party who is not represented by counsel does not result in the suspension of anyone’s fundamental language rights.
Where the language rights of a party or of his or her counsel are not upheld, the appropriate remedy will generally be to order a new hearing. Any remedy that is granted must support the achievement of the objective of these fundamental rights, and only a new process conducted in a manner respectful of everyone’s rights will normally represent a true affirmation of language rights. The fact that a violation has had no impact on the fairness of the hearing is not relevant to the remedy. If a remedy is sought for the violation of a witness’s language rights, a connection between that violation and the party who is asking for a new hearing must be established precisely, bearing in mind that the courts should favour the existence of effective remedies for violations of witnesses’ language rights. In deciding on the appropriate remedy, a court can consider the degree of connection between the violations in question and the rights and interests of the party who is asking for a new hearing as well as the lawyer’s conduct or interventions. The remedy must not be disproportionate in relation to the scale of the violation, its recurrence and its impact on personal dignity. A short‑term violation or one that is relatively harmless for its victim, or a violation that seems to have been raised for purely tactical purposes, might not justify ordering a new hearing. Furthermore, practical considerations might justify a court’s contemplating a remedy other than a new hearing, such as awarding costs or declaring that the rights of a party or a witness were violated.
Here, the language rights of several individuals who participated in this case were infringed at the hearing in the TCC. First of all, the right of Industrial’s first witness to be heard in the official language of his choice was violated when the judge asked him to choose between having the hearing adjourned and testifying in English. Next, the right of a witness of the Minister of National Revenue to testify in the official language of her choice seems to have been subordinated to M’s authorization. Then there was a clear and serious violation of the constitutional right of two of Industrial’s other witnesses to speak in the official language of their choice when the judge denied one of them the right to speak in French despite the witness’s having clearly asked to do so and when he insisted that the other testify primarily in English. Moreover, the judge violated the rights of counsel for Industrial by denying him the right to present his argument in French. Finally, M’s right to an interpreter was violated.
These violations were numerous, and they had an undeniable impact on the witnesses and the parties, on the conduct of the hearing and even on its outcome. They brought the administration of justice into disrepute. Nothing in the record suggests that these witnesses “waived” their right to testify in French and that counsel for Industrial did so in respect of his right to present his argument in French when the judge accepted the offer of counsel for Industrial to have his first witness speak in English, or that they themselves made a free and informed choice to speak in English. Counsel for Industrial took appropriate steps to assert his own rights as well as the rights of his client and his witnesses. His choice to defer to the judge’s instructions resulted from the judge’s insistence and was not a tactical move. The order for a new hearing was therefore fully justified.
Cases Cited
Applied: R. v. Beaulac, [1999] 1 S.C.R. 768; referred to: Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340; R. v. Dow, 2009 QCCA 478, [2009] R.J.Q. 679; Pintea v. Johns, 2017 SCC 23, [2017] 1 S.C.R. 470; R. v. Tran, [1994] 2 S.C.R. 951; Belende v. Patel, 2008 ONCA 148, 89 O.R. (3d) 494; R. v. Munkonda, 2015 ONCA 309, 126 O.R. (3d) 646; R. v. Potvin (2004), 69 O.R. (3d) 641; Kilrich Industries Ltd. v. Halotier, 2007 YKCA 12, 161 C.R.R. (2d) 331; Ewonde v. Canada, 2017 FCA 112; Beaudoin v. Canada, [1993] 3 F.C. 518; Doucet‑Boudreau v. Nova‑Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms , ss. 14 , 19 , 24(1) .
Code of Professional Conduct of Lawyers, CQLR, c. B‑1, r. 3.1, s. 23.
Constitution Act, 1867 , s. 133 .
Criminal Code , R.S.C. 1985, c. C‑46, s. 530 .
Employment Insurance Act , S.C. 1996, c. 23 , Part IV.
Federal Courts Rules, SOR/98‑106, rr. 31, 93, 283, 314, 347.
Official Languages Act , R.S.C. 1985, c. 31 (4th Supp .), ss. 2, 14, 15, 58 et seq.
Tax Court of Canada Act , R.S.C. 1985, c. T‑2, ss. 18.15 , 18.29(1) (b).
Tax Court of Canada Rules (General Procedure), SOR/90‑688a, ss. 101, 102, 123, Form 123.
Tax Court of Canada Rules (Informal Procedure), SOR/90‑688b.
Authors Cited
Canadian Judicial Council. Statement of Principles on Self‑represented Litigants and Accused Persons, September 2006 (online: https://www.cjc-ccm.gc.ca/cmslib/general/news_pub_other_PrinciplesStatement_2006_en.pdf; archived version: https://www.scc-csc.ca/cso-dce/2018SCC-CSC50_1_eng.pdf).
APPEAL from a judgment of the Federal Court of Appeal (Gauthier, Boivin and de Montigny JJ.A.), 2017 FCA 80, [2018] 1 F.C.R. 495, 2017 D.T.C. 5046, [2017] F.C.J. No. 374 (QL), 2017 CarswellNat 1457 (WL Can.), quashing a decision of Archambault J. of the Tax Court of Canada, 2016 TCC 65, [2016] T.C.J. No. 67 (QL), 2016 CarswellNat 1132 (WL Can.). Appeal dismissed.
Cameron Fiske, David Milosevic, Caroline Garrod and David Cassin, for the appellant.
Yves Turgeon, Michael Shortt and Paul Côté‑Lépine, for the respondent Industrial Alliance Insurance and Financial Services Inc.
Marc Ribeiro, for the respondent the Minister of National Revenue.
Sylvie Champagne, for the intervener Barreau du Québec.
Nicolas M. Rouleau, for the intervener the Canadian Bar Association.
François Larocque and Sara‑Marie Scott, for the intervener Association des juristes d’expression française de l’Ontario.
Élie Ducharme and Christine Ruest Norrena, for the intervener the Commissioner of Official Languages for Canada.
English version of the judgment of the Court delivered by
Gascon and Côté JJ. —
I. Overview
[1] In Canada, the right to speak in the official language of one’s choice in certain courts is a fundamental and substantive right that is recognized in both constitutional and quasi‑constitutional laws. Any person who appears in the courts in question must be able to exercise this right freely. When a person asks a judge of one of these courts for permission to speak in the official language of his or her choice, the judge’s answer must be yes.
[2] That is not what happened at a hearing in the Tax Court of Canada (“TCC”), however. Some of the witnesses as well as counsel for one of the parties indicated that they wanted to speak in French, but the judge presiding the case asked them to speak in English instead so as to accommodate one of the parties, who was unilingual. Confusing the rights of the various people involved in the case, the judge prevented the witnesses and counsel from speaking in French in the absence of an interpreter to translate what they had to say into English. In so doing, he violated the fundamental language rights of all these individuals. As for the unilingual party, he had a separate right under the Official Languages Act , R.S.C. 1985, c. 31 (4th Supp .) (“OLA ”), to have an interpreter translate the testimony and pleadings for him, but he did not benefit from this right despite having indicated that he wanted to avail himself of it. The Federal Court of Appeal (“FCA”) ordered that a new hearing be held before a different judge. We agree that this is what is required in the circumstances.
[3] This appeal affords this Court an opportunity to consider the duties judges and lawyers must discharge in order to protect the language rights of individuals involved in proceedings in certain courts as well as the remedies that are available when those rights are not upheld. In our opinion, a purposive interpretation of the language rights in question leads to the conclusion that judges are required to participate actively in protecting them. While it is true that lawyers have a role to play in this regard in accordance with their ethical duties, a lawyer’s failure to intervene does not release a judge from his or her duties. When language rights are violated, the appropriate remedy will generally be to order a new hearing.
II. Background
(1) Origin of the Case
[4] In 2012, the appellant, Kassem Mazraani, was working as a personal insurance representative for the respondent Industrial Alliance Insurance and Financial Services Inc. (“Industrial”). His contract stipulated that he was self‑employed. After six months, Industrial terminated the contract, which it was entitled to do if a representative failed to make any sales for five consecutive weeks.
[5] Following the termination, Mr. Mazraani asked the Canada Employment Insurance Commission to consider this employment to be insurable employment, which would enable him to obtain employment insurance benefits. To that end, he sought a determination that he had been an employee of Industrial. The Commission concluded that his employment had not been insurable employment. In accordance with the procedure set out in the Employment Insurance Act , S.C. 1996, c. 23 (“EIA ”), Mr. Mazraani appealed the Commission’s decision to the Canada Revenue Agency (“CRA”), which upheld it. He then took the case to the TCC. He was not represented by counsel in that court.
(2) Individuals and Entities Involved in the TCC Proceedings
[6] At first, Mr. Mazraani and the other respondent, the Minister of National Revenue (“MNR”), were the only parties in the TCC proceedings. The MNR was defending the CRA’s decision under the EIA . Industrial intervened as a party in the TCC because the case was calling its business model into question. Mr. Mazraani was in fact one of 400 insurance representatives who had signed the same contract with Industrial and were working in similar conditions for 50 agencies that all followed the same model for the training of and services to representatives. A conclusion that Mr. Mazraani was an employee could therefore affect the status of those 400 representatives both under the EIA and under the Act respecting labour standards, CQLR, c. N‑1.1, the Act respecting occupational health and safety, CQLR, c. S‑2.1, the Act respecting industrial accidents and occupational diseases, CQLR, c. A‑3.001, and the Labour Code, CQLR, c. C‑27.
[7] Because of the issues raised by this case, it was Industrial that called most of the witnesses in the TCC proceedings. Indeed, the MNR called only one witness, Ms. Lambert, the CRA officer who had made the ruling that was being appealed. Her testimony was peripheral, because the exercise of characterizing the contract between Mr. Mazraani and Industrial had to be performed anew in the TCC. Industrial called all the key witnesses, including Mr. Michaud, its senior vice‑president, sales and administration, who described the company and its human resources structure; Ms. Beaudet, a lawyer working for Industrial, who outlined the representatives’ contracts and Industrial’s legal obligations to its representatives; Mr. Charbonneau and Ms. Woo, two other representatives who were self‑employed in theory and who testified about their respective relationships with Industrial; and, finally, Mr. Leclerc, an employee of Industrial who was the manager of the agency where Mr. Mazraani worked and who explained his relationship with his representatives and with Mr. Mazraani.
[8] Moreover, the MNR left it to Industrial to present the legal arguments in support of the position that Mr. Mazraani’s contract was a contract for services and not a contract of employment. Indeed, the argument of counsel for the MNR in the TCC is limited to 7 pages of the transcript, while that of counsel for Industrial, Mr. Turgeon, takes up over 200 pages.
(3) Conduct of the Hearing in the TCC
[9] The rules of procedure that generally apply in TCC proceedings provide for a mechanism by which parties can give the court and the other party advance notice of the official language in which they and their witnesses will be speaking and, where necessary, request that the court make an interpreter available to them (Tax Court of Canada Rules (General Procedure), SOR/90‑688a, ss. 101, 102(5), 123 and Form 123). However, Mr. Mazraani’s case in the TCC was conducted in accordance with an informal procedure. Sections 18.15 and 18.29(1) (b) of the Tax Court of Canada Act , R.S.C. 1985, c. T‑2 , provide that certain appeals, including those arising under Part IV of the EIA, “shall be dealt with by the Court as informally and expeditiously as the circumstances and considerations of fairness permit”. What is more, such appeals are not subject to the usual rules of evidence. One example of this is that the rules of procedure specific to an appeal such as that of Mr. Mazraani indicate neither how parties are to advise the court of the language in which they, their counsel or their witnesses wish to speak nor how they can request the presence of an interpreter.
[10] This procedural gap was problematic from the first day of the hearing. The judge commenced the hearing in English and spoke in English with Mr. Mazraani. While the judge was discussing Industrial’s notice of intervention, which had been drafted in French, Mr. Mazraani told him that he had trouble understanding French. The judge immediately put the document aside and continued the hearing without any further discussion of the matter. Despite this first sign that Industrial wished to proceed in French whereas Mr. Mazraani was more comfortable doing so in English, the judge did nothing to make things clear, inquire into each party’s intention and ensure that everyone understood their language rights.
[11] The hearing was scheduled to last only one day, but Mr. Mazraani’s testimony turned out to be long, which meant that it had to be adjourned to the following day. On the second day of the hearing, Industrial’s first witness, Mr. Michaud, was called to give evidence. He stated that he wished to testify in French. The judge then asked Mr. Mazraani if he needed an interpreter. Mr. Mazraani answered that he did. The judge informed counsel for Industrial that he was prepared to allow Mr. Michaud to testify in French but that he would then have to adjourn the hearing and put it off until another day so that an interpreter could attend to translate the witness’s testimony. After consulting with Mr. Michaud, counsel for Industrial suggested that Mr. Michaud might instead testify in English, using a few words in French if necessary. The judge agreed to proceed in this way. He added that it was better to be “pragmatic” and to try proceeding like this, at the risk of having to adjourn the hearing should there be any problems. Mr. Michaud gave his testimony in this way.
[12] In Mr. Mazraani’s view, this brief exchange is crucial. He argues that Mr. Turgeon and the judge thus agreed to a compromise regarding the language to be spoken by Industrial’s witnesses that would apply throughout the hearing. But that is not what the transcript shows, and in any event, such an agreement could not have bound any subsequent witnesses. We will return to this below.
[13] The case required additional hearing days. Twenty days later, on the third day of the hearing, counsel for the MNR asked about examining his witness, Ms. Lambert, in French if Mr. Mazraani did not object. Because Mr. Mazraani did object, Ms. Lambert testified in English. That same day, Mr. Charbonneau, a witness called by Industrial, asked the judge for permission to testify in French, stressing that he was more comfortable in that language and that he was surprised to have to give his testimony in English. But the judge asked him to make an effort and to testify in English. Unlike on the second day, the judge did not mention to the witnesses or to Mr. Mazraani that it would be possible to adjourn the hearing until an interpreter could be called in.
[14] At the end of the fourth day of the hearing, it was adjourned again. Two weeks later, on the fifth day, Mr. Leclerc, another witness for Industrial who had started testifying in English of his own accord, quickly showed signs of difficulty speaking that language. Even though counsel for Industrial insisted a number of times that the witness give his evidence in French, the judge always steered the testimony back to English. That same day, when counsel for Industrial mentioned that he intended to present his argument in French the following day, which he considered necessary if he was to serve his client properly, the judge insisted that he do the best he could in English. The next day, when counsel spoke in French a few times, the judge intervened to ask him to continue in English.
III. Judicial History
A. Tax Court of Canada, 2016 TCC 65
[15] In a lengthy judgment, the judge ruled in Mr. Mazraani’s favour, concluding that Mr. Mazraani was an employee of Industrial. In his analysis of the evidence, the judge wrote scathingly about insurance companies in general and Industrial’s witnesses in particular. In his opinion, Industrial had given “misleading” evidence (para. 177), and its position on its relationship with its employees was a self‑serving “embellishment” of reality (para. 205). Among other things, he suggested that the witnesses had played with words and syntax to avoid telling the whole truth. To him, their testimony was “troubling”, as “[s]ome of their statements embellished reality, others were misleading and still others bordered on perjury” (para. 223). He was particularly critical of Mr. Michaud and Mr. Leclerc, accusing them of being none too candid and of making misleading statements. In his view, this conclusion was justified by, among other things, contradictions in Mr. Leclerc’s testimony and certain choices of words by Mr. Michaud, which were imprecise.
[16] The judge also took shots at counsel for Industrial, whom he accused of having incited his witnesses to distort the truth and to mislead the court. Finally, the judge accused Industrial, on the basis of his criticisms of the witnesses, of not having been forthcoming. He added that Industrial’s attitude had been the cause of the numerous delays in the case: the hearing that had been scheduled to take one day ended up taking six. In concluding, the judge ordered Industrial, even though it was an intervener, to pay costs, relying on the TCC’s residual power to prevent and discourage any abuse of its process.
B. Federal Court of Appeal, 2017 FCA 80, [2018] 1 F.C.R. 495
[17] Industrial appealed the TCC’s decision on the grounds that the language rights of its witnesses and counsel had been violated and that there was a reasonable apprehension of bias on the judge’s part. The FCA allowed the appeal in a judgment delivered from the bench. In written reasons that it deposited afterwards, it held that the judge could not seek a shortcut around the language rights of the people involved. The rights in question are constitutional and quasi‑constitutional in nature and must be protected proactively. Moreover, the right to speak in the courts in the official language of one’s choice under s. 133 of the Constitution Act, 1867 is unrelated to the ability to speak correctly in one language or the other. The FCA found that the judge should not have agreed to the compromise regarding Mr. Michaud’s testimony that had been suggested by counsel for Industrial on the second day of the hearing. As well, he should not have treated the requests of Mr. Charbonneau, Ms. Lambert and Mr. Turgeon as requests for accommodation, but as the legitimate exercise of their protected right to speak in the official language of their choice. The FCA added that Mr. Mazraani’s rights had also been violated, as there were long periods when testimony, in particular that of Mr. Leclerc, was given in French without being translated for Mr. Mazraani by an interpreter even though he had clearly stated that he needed interpretation services.
[18] Finally, the FCA found that there was no indication that the witnesses and Mr. Turgeon had agreed to speak in English or that they had only asserted their rights after the fact for tactical reasons. It therefore ordered a new hearing before a different judge, making it clear that the parties would not be permitted to adduce the transcript of the first hearing in evidence.
IV. Issues
[19] Mr. Mazraani’s appeal to this Court raises two questions:
1. Were the language rights of the parties, the witnesses or counsel at the hearing in the TCC violated?
2. If so, is it appropriate to order a new hearing?
Before answering these questions, we must first determine (1) the nature of the language rights in question; (2) the responsibilities in this regard of judges and officials of the courts concerned, or of the lawyers involved; (3) how language rights are to be exercised and whether they can be waived; and, lastly, (4) the remedies that are available should these rights be violated.
V. Analysis
A. Language Rights
[20] English and French are the official languages of Canada. There are a number of laws that protect an individual’s right to speak in the official language of his or her choice. In R. v. Beaulac, [1999] 1 S.C.R. 768, this Court established the principles that must guide the interpretation of any right that is intended to protect the equal status of Canada’s official languages and to ensure full and equal access to the country’s institutions by Anglophones and Francophones alike (paras. 15 and 25). First of all, language rights are substantive rights, not procedural rights (para. 28). This means that the state has a duty to ensure that they are implemented (para. 24), and also that they cannot be interfered with (para. 28). Next, “[l]anguage rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada” (para. 25 (emphasis in original)). Finally, language rights are distinct from the principles of fundamental justice, which require, for example, that an accused be able to understand and be understood at his or her trial (paras. 25 and 41). These rights have a purpose that is unique to them, namely the preservation and protection of “official language communities where they do apply” (para. 25). They do not relate to the person’s ability to speak one language or another. Indeed, those who are bilingual are no less entitled to exercise them than those who are unilingual.
(1) Language Rights in Federal Courts
[21] Certain language rights concern access to certain courts in Canada. There are two legislative provisions in the Canadian Constitution whose effect is to recognize the rights in question. This Court has held that the purpose of these provisions is “to ensure full and equal access to the legislatures, the laws and the courts for francophones and anglophones alike” (Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 739; see also Beaulac, at para. 22).
[22] The first, s. 133 of the Constitution Act, 1867 , provides in part as follows:
133. . . . either of those [official] Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.
[23] The second, s. 19 of the Canadian Charter of Rights and Freedoms , reads as follows:
19. (1) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court established by Parliament.
(2) Either English or French may be used by any person in, or in any pleading in or process issuing from, any court of New Brunswick.
[24] The TCC is a court established by Parliament, and both sections apply in this case. They protect the right to use English and French in the TCC.
[25] There are other language rights applicable to certain courts that are instead quasi‑constitutional in nature. This is true of the rights provided for in the OLA (Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340, at para. 12, quoting Lavigne v. Canada (Office of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R. 773, at para. 23, in turn quoting Canada (Attorney General) v. Viola, [1991] 1 F.C. 373 (C.A.), at p. 386). Sections 14 and 15 of the OLA , which are relevant to the case at bar, govern the exercise of these constitutional rights in federal courts such as the TCC:
14 English and French are the official languages of the federal courts, and either of those languages may be used by any person in, or in any pleading in or process issuing from, any federal court.
15 (1) Every federal court has, in any proceedings before it, the duty to ensure that any person giving evidence before it may be heard in the official language of his choice, and that in being so heard the person will not be placed at a disadvantage by not being heard in the other official language.
(2) Every federal court has, in any proceedings conducted before it, the duty to ensure that, at the request of any party to the proceedings, facilities are made available for the simultaneous interpretation of the proceedings, including the evidence given and taken, from one official language into the other.
[26] There is an important distinction between the right guaranteed in ss. 14 and 15(1) of the OLA — the right to speak in the official language of one’s choice — and the right guaranteed in s. 15(2) of the OLA — the right to an interpreter. Whereas ss. 14 and 15(1) give any person the right to use, and any witness the right to speak in, the official language of his or her choice without being placed at a disadvantage, s. 15(2) protects the right of parties to understand what happens in hearings in which they participate. These rights are distinct and need not be asserted in parallel: a person is fully entitled to choose to testify in a given language without worrying about whether an interpreter will be present. The exercise of the fundamental right to speak in the official language of one’s choice does not depend on whether an interpreter is present.
[27] Furthermore, this Court held in Beaulac that these rights must be interpreted in light of their objective, which is described in s. 2 of the OLA :
The objective of protecting official language minorities, as set out in s. 2 of the Official Languages Act , is realized by the possibility for all members of the minority to exercise independent, individual rights which are justified by the existence of the community. Language rights are not negative rights, or passive rights; they can only be enjoyed if the means are provided. [para. 20]
Thus, the rights provided for in the OLA will not help achieve the OLA ’s objectives unless all members of the community can exercise them and are provided with the means to do so. These language rights must be understood as individual and personal rights. They must also be interpreted as guaranteeing access to services of equal quality, as this is the only interpretation that allows their objective to be fully achieved (Beaulac, at para. 22). The federal courts to which ss. 14 and 15 of the OLA apply must therefore provide the resources and procedures that are needed in order to respond to requests from parties and witnesses under these sections. Moreover, given the quasi‑constitutional nature of the OLA , ss. 14 and 15 apply even to a hearing in one of those courts that is conducted in accordance with an informal or simplified procedure.
[28] From this perspective, ss. 14 and 15(1) of the OLA restate the essence of the right guaranteed in s. 19(1) of the Charter . Beaulac requires nothing less. Language rights are not procedural rights related to the dispute that brought the parties before the court in question. Rather, they are fundamental rights related to access of the parties and their witnesses to that court in the official language of their choice. Absent vigilance on the judge’s part, this bilingual status is purely symbolic. A purposive reading of s. 19(1) of the Charter requires that the court attach the utmost importance to the protection of each person’s right to speak in the official language of his or her choice.
[29] A number of courts that have the constitutional duty to allow any person to speak in the official language of his or her choice have therefore adopted special measures to facilitate the exercise and assertion of this right. As we mentioned above, the Tax Court of Canada Rules (General Procedure) include standard forms that require the parties to specify the language in which their witnesses will be testifying. This requirement has the advantage of making it clear that the choice of language is not to be made by the court or by the other party, and also of encouraging discussions with witnesses on this subject and ensuring that the other party is informed in this regard. The Federal Courts have enacted similar rules (Federal Courts Rules, SOR/98‑106, rr. 314 and 347). However, the TCC’s rules that apply to cases like the case at bar in which a simplified procedure is followed are silent in this regard (Tax Court of Canada Rules (Informal Procedure), SOR/90‑688b).
[30] Regarding the right to an interpreter, given that only Mr. Mazraani could have raised the issue of the judge’s failure to act on his request under s. 15(2) of the OLA , and that he has not invoked that violation in this Court, there is no need to consider the nature of that right or how it is to be exercised. We note, however, that although the costs of interpretation services are usually paid for by the Federal Courts and the TCC (Federal Courts Rules, rr. 93 and 283; Tax Court of Canada Rules (General Procedure), ss. 101 and 102), the rules for proceedings to which a simplified procedure applies do not mention this possibility. Moreover, whereas the rules of the Federal Courts include a mechanism for asking the courts’ officials to provide interpretation services (Federal Courts Rules, rr. 31 and 93), the TCC’s rules are less clear on this point.
[31] That being said, the absence of rules to facilitate the exercise of the rights provided for in the OLA does not mean that those rights do not exist. On the contrary, the OLA requires that in every case the TCC, a federal court, provide interpretation services at the request of a party and allow every person to speak in the official language of his or her choice. It is of course desirable for the rules of procedure of the federal courts that have such duties to provide litigants with the tools needed to facilitate the assertion and exercise of the rights in question. But when potential language‑related difficulties are not identified and managed ahead of time by way, for example, of an adequate proactive institutional infrastructure, the roles of the judge and of counsel for the parties in protecting the language rights of individuals participating in a hearing become particularly important.
(2) Roles of the Judge and of Counsel
[32] With this in mind, it should be noted that it is the judge of the federal court in question who is primarily responsible for upholding the language rights of witnesses, of parties and of any individual who appears before him or her. Ther