Liu Estate (Re), 2021 ABQB 999

Court of Queen’s Bench of Alberta Citation: Liu Estate (Re), 2021 ABQB 999 Date: 20211214 Docket: ES03 156557 Registry: Edmonton Court File Number ES03 156557 Court Court of Queen’s Bench of Alberta (Surrogate Matter) Judicial Centre Edmonton Estate Name Jiasen Liu Applicant (Plaintiff) Lina Zhang Respondent (Defendant) Harry Yi Liu, Alto Liu, and Gerry Liu _______________________________________________________ Endorsement of the Honourable Mr. Justice M.J. Lema _______________________________________________________ A.

Introduction [ 1 ] An applicant for maintenance and support under the Wills and Succession Act and the will beneficiaries dispute whether certain Chinese-language documents, responses to undertakings given in cross-examinations on affidavit, have to be translated and, if so, who should pay for translation. [ 2 ] I find that the beneficiaries have to pay, at least initially, for any perceived-to-be-necessary translations of the undertaking responses, albeit with a right to apply to have such costs paid as part of their disbursements at the conclusion of the substantive application. [ 3 ] The applicant shall pay to translate the Chinese-language document(

s) forming part of her affidavits (as exhibits) in support of her application. B. Background

[4] The background is partly outlined in 2021 ABQB 963, which examined the sufficiency of Ms. Zhang's undertaking responses(some refused, some perceived as inadequately answered). [5] Some of the documents provided as undertaking responses are wholly or partly in Chinese. Per the Answers to Undertakingsfiled by the beneficiaries on October 28, 2021, that includes Ms.

Zhang's passport, a "chat history", and what appear to be accountstatements reflecting various credits and debits. [6] Per my earlier decision (as augmented by an expanded ruling on December 2, 2021), there are also further documents to beproduced i.e. on certain refused and inadequate-answer questions. [7] The question is, for all of these Chinese-language documents, whether they must be translated and, if so, who should pay forthat. C. Analysis [8] No Alberta rule expressly addresses this issue.

The only Rules apparently touching on translation are 9.43(2) (translation ofcertain “convention judgments” in a reciprocal-enforcement-of-judgments setting), 11.32(b) (service of foreign-country process), and13.23(4) (affidavits in non-English language). [9] Neither the Languages Act nor the Languages in the Courts Regulation provide any direction or guidance here (the formeraddressing only (in this context) the use of English and French in oral communications in proceedings before the Court, and the latter,proceedings to which the Provincial Offences Procedure Act applies, and it does not apply here). [10] The undertaking-response documents were sought by the beneficiaries, apparently to show, or help show, that Ms.

Zhang hasno need for financial support or perhaps not as much as claimed. As partly noted above, the documents include her passport (presumablyto show how much travelling she has done, possibly on her own resources), Chinese-pension-related documents (presumably to showanother source or other sources of income), and certain bank-account (or analogous to bank-account) statements (presumably to show orhelp show other available resources and her spending patterns). [11] Ms. Zhang did not see fit to include these documents with the evidence filed in support of her support application (whether ornot she should have).

As far as I can tell, her position is that she has provided adequate disclosure of her financial circumstances i.e. tothe extent required on her support application. [12] As far as I can tell, it is the beneficiaries who wish to rely on the undertaking-response documents i.e. in opposition to Ms.Zhang’s application. [13] This is akin to the circumstance examined by Master Breitkreuz in Jasper Millwork Ltd v Borden Co (1996) 47 Alta LR (3d)181, (ABQB), where he held: At examinations for discovery the plaintiff’s officer undertook to provide copies of correspondence and other written materialexchanged with the German customer and the undertaking was complied with according to the plaintiff.

According to thedefendants the undertaking was not complied with because the material was provided in the German language. Apparently thematerial involves a huge number of pages and a professional translation would cost in the area of $8,000.00. The sole question for the court is whether there has been compliance with the undertaking by providing documents in the Germanlanguage. … What is before me is whether a litigant has complied if he undertakes to produce documents and he has in fact produced them butthey are in a different language than the opposite party expected.

They may well be in a different language than the producing partyexpected as well, and it is almost implicit from the context of this application that that is what happened here. It may well be that Mr.Erler would not have undertaken to produce those documents if he knew they were in the German language and was required to translatethem. In my view the proper approach is to ask who wants the documents and for whose benefit are they produced. The plaintiff has notsuggested it needs the documents or that it will be relying on them.

The defendants are the ones who want the documents andobviously they have no idea whether they will be relying on them until they know the content of those documents. The firstparagraph of the extract from the Rocky Credit Union case [v Cole’s Auction Mart Ltd., QB Edmonton 9003 02840, September 10, 1990]might be appropriate here: If the defendants want to see what these documents are all about they will have to accept the time andcost risks inherent in translating them. In my view the plaintiff has complied with the undertakings.

The application should be dismissed with costs to the plaintiff in any eventof the cause, taxation to be adjourned to the end of the proceedings. [paras 3, 4 and 6-8] [emphasis added]. [14] In Attila Dogan Construction v.

AMEC Americas Limited, 2011 ABQB 794, Wittmann C.J. tagged the party receivingforeign-language documents, in document production, with the initial responsibility to pay for translation (other than for documents forwhich the document producer had translations, which it was obliged to produce), albeit also obliging the producer to post security foradditional (translation-related) costs: paras 59-71. [15] In Attila Dogan Construction and Installation Co Inc v AMEC Americas Ltd, 2012 ABCA 379 (paras 9-29), the Court ofAppeal affirmed those decisions, although suggesting that the parties narrow the scope of production (approximately 24,000 documentsin Turkish), to reduce the amount of translation work. [16] In the course of its decision (para 12), the Court of Appeal commented on Jasper Millwork:

Another case relied upon by the appellant [i.e. the document producer], Jasper Millwork Ltd v Borden Co …, concerned compliance with an undertaking. … The defendant argued that the undertaking was not complied with [i.e. via provision of the German-language documents]. The Master held that the undertaking was complied with and that if the defendants wanted to read these documents, they would have to accept the “cost risk” inherent in translating them. We are not sure how much assistance Jasper Millwork could have given the case management judge.

The sole issue was whether there had been compliance with the undertaking. Unlike the case on appeal, the documents undertaken to be produced in Jasper Millwork were not disclosed in the plaintiff’s affidavit of records. More importantly, it was not a costs or a security for costs decision. Nor did the Master hold that the party seeking the documents would be ultimately responsible for translation costs. He simply held that the defendants would have to accept the “cost risk”, i.e., the risk that they might not recover the cost inherent in translating the documents.

In other words, the issue of who would ultimately bear the cost of translation was not determined. [emphasis added] [ 17 ] These distinctions do not undercut the rationale or logic of Master Breitkreuz’s approach here, in this response-to- undertakings (i.e. not general document production) sphere, and where we are not dealing with security for costs or costs generally. (As the Attila Dogan decisions reflect, any translation costs incurred by a given party may turn out to be recoverable disbursements i.e. as part of a costs award.) [ 18 ] I acknowledge an apparently contrary finding in Nafie v Badawy , 2015 ABCA 36 : The inclusion of exhibits in a foreign language was another complicating factor, particularly given the parties’ differing perspectives on their meaning.

Some documents contained the stamp of a certified translator while others were not translated at all. Where there is a dispute, only those materials that are translated by a qualified translator should be accepted and considered.

The party adducing evidence in a foreign language should provide for its translation or accept the risk of not doing so : Attila Dogan Construction and Installation Co Inc v AMEC Americas Ltd , 2012 ABCA 379 at paras 9-12 , 539 AR 308. [para 113] [emphasis added] [ 19 ] To the extent that (“party adducing evidence”) refers to the producing party, that ruling does not actually square with Attila Dogan , where (at least initially) the receiving party had to pay for translation. [ 20 ] In any case, the focus of the comment in Nafie was foreign-language exhibits to affidavits.

Per R. 13.23(4) (referred to above): Unless otherwise permitted by the Court, a sworn affidavit that is not in the English language must be translated into English by a translator competent to do so and, when the affidavit is filed, be accompanied with a certificate of the translator that the translation is accurate and complete. [ 21 ] That (translate-into-English) duty extends to exhibits to affidavits: Conseil scolaire francophone de la Colombie-Britannique v British Columbia , 2013 SCC 42 .

The Supreme Court held: … Rule 22-3 of the Supreme Court-Civil Rules requires that exhibits attached to affidavits and filed in court be in English. The respondents advanced this as an alternative argument, and it was accepted by both of the courts below. Rule 22-3(2) states:

(2) Unless the nature of the document renders it impracticable, every document prepared for use in the court must be in the English language , legibly printed, typewritten, written or reproduced on 8 1/2 inch x 11 inch durable white paper or durable off-white recycled paper. Although the appellants argue that the exhibits attached to the affidavits were not prepared for use in court , because they were prepared in the usual course of their business, it is my view that 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 appellants wish to rely on the content of the exhibits, as opposed to their existence or their authenticity, the exhibits must comply with the rule, since an exhibit that is relied upon for its content is effectively incorporated into the affidavit . [paras 58 and 59] [emphasis added] [ 22 ] The burden-on-recipient-to-translate (at least initially) approach is also supported by Han v Cho , 2008 BCSC 1208 , where Griffin J. held (in part): In my view, Rule 4(2) [“… every document prepared for use in court shall be in the English language …”] is meant to apply to submissions and documents, which are court forms or filed in court .

In my view, it would be a mistake to extend the meaning of Rule 4(2) to cover the form of documents produced under Rule 26 [general document production]. If that was the meaning imposed on Rule 4(2), it would, for example, require a party to type out handwritten notes and produce the typewritten version in response to a Rule 26 demand for discovery of documents, instead of producing the handwritten note in its original form.

While in many cases it would seem practical and helpful for an opposite party to type out handwritten notes, or translate documents in a foreign language to assist the other party, I conclude that Rule 4(2) does not require a party to do so when responding to a Rule 26 demand for production of documents. The defendant also argued that the order sought in this case would be consistent with the purpose of the Rules of Court as enunciated in Rule 1(5). I disagree.

In my view, what the defendant seeks may actually increase the costs of litigation and not advance the interests of a determination of the issues on the merits. Many more documents are produced through the discovery process than are ever introduced into evidence at trial. It will only be necessary to have certified translations of those documents put into evidence at trial . Yet, the defendant is asking that the court require a party to obtain certified translations of each document produced pursuant to a Rule 26 demand.

If I were to grant the applicant's request, I would be imposing a new and additional cost of litigation on all parties to litigation, which have a large number of documents in a foreign language . These certified translations may not contribute to a determination of the issues in the case on the merits and, based on the costs reported by the plaintiffs, could be quite expensive. Further, if I ruled as requested by the defendant applicant that a party in litigation has an obligation to provide certified translations of

documents produced pursuant to a Rule 26 demand, this could also give rise to disputes as to whether or not a party’s translator has correctly translated the document and, hence, whether or not that party has complied with this court-imposed obligation . This side issue could also increase the cost of litigation unnecessarily. I am influenced in this case by the fact that all parties are able to read the Korean language. Any documents produced in the Korean language by one party can be read and understood by the other. Each party can then instruct their counsel on the contents of the documents .

I am not persuaded on the facts of this case or on the meaning of the Rules, that the interests of justice require that I order one side to translate documents for the other side. If one party wishes a document to be translated, then it can incur that cost and claim it as a reasonable disbursement at the conclusion of the case.

Obviously, if any party is seeking to introduce a document into evidence at trial, then they will bear the cost of providing a certified translation of that document . [paras 9 and 11-14] [emphasis added] [ 23 ] See also Griffin J.’s decision to the same effect in Bilfinger Berger (Canada) v Greater Vancouver Water District , 2010 BCSC 1104 (paras 8-20 ), and the similar approach of Case Management Justice Furlanetto in Sunovion Pharmaceuticals Canada Inc v Pharmascience Inc , 2020 FC 1080 (paras 20-40 ). [ 24 ] Deutsche Postbank v Kosmayer , 2016 ONSC 7138 (Master Brott) placed the translation burden on the producing party.

I distinguish that decision, with its emphases on the producer’s counsel presumably requiring a translation to assist that counsel in understanding the foreign-language documents (i.e. translations were going to be prepared by the producer in any case) and the need for a level playing field between the parties (given apparently limited, or no, facility at the receiving end -- parties or counsel -- in the foreign language). [ 25 ] Here, as I understand it, both Ms. Zhang and her counsel are conversant in Chinese (reading and writing) and, accordingly, will presumably not be requiring translations themselves.

As well, as discussed further below, the beneficiaries apparently do not require any play-field levelling, at least translation-wise. Application of those principles here [ 26 ] Here are the key factors on the undertaking responses: • these documents apparently do not form part of the applicant’s evidence; • rather, it is the beneficiaries who wish to rely on these responses (to counter, or try to counter, the application); • the beneficiaries’ chief witness (Ms.

Wang, the mother of the two estate beneficiaries, one a minor) advised that she “is fluent in Chinese and can read and understand it” (her July 30, 2021 affidavit); • she has already translated some of the applicant’s documents (see, for example, the messages translated at para 16 of her October 27, 2021 affidavit); • for some of the applicant’s other Chinese-language documents, the beneficiaries have apparently already arranged for translations by a certified translator (see, for example, the banking documents attached as Exhibit A to Ms.

Wang’s July 30, 2021 affidavit); • the beneficiaries did not explain why further translations cannot be managed by Ms. Wang or that translator, or both of them; and • the additional documents sought be translated, at least the existing responses, are few in number and apparently (for the large part) straightforward.

The passport itself contains English counterparts to the Chinese information, the “chat history” is four or five pages, and the 45 or so pages of account information, with 6 or so entries per page, and with recognizable number information, only require bite- sized translation per transaction (presumably the identifying information for the vendor or other entity in question). D.

Conclusion [ 27 ] The beneficiaries must pay for, or otherwise perform or arrange for, translation of the currently untranslated Chinese-language undertaking responses i.e. to the extent they seek to rely on those responses at the application. [ 28 ] Same for any Chinese-language documents supplied in response to my directions in 2021 ABQB 963 (as augmented by follow-up correspondence). [ 29 ] On the other hand, Ms. Zhang has to arrange and pay for translation of the Chinese-language exhibit(

s) in her affidavits, including Exhibit D to her October 22, 2020 affidavit. [ 30 ] Either party can apply, at the conclusion of the support-and-maintenance application, to have its translation costs awarded as part of any costs award that is made. [ 31 ] Given the divided success on the overall application heard on November 22, 2021 (the beneficiaries largely successful on the undertakings front, Ms. Zhang largely successful on the translation front), each party shall bear its own costs of the application. [ 32 ] I thank the parties for their helpful submissions. Heard in civil chambers on November 22, 2021. Follow-up submissions (via letter) received December 1, 2021.

Dated at the City of Edmonton, Alberta this 14 th day of December, 2021. M. J. Lema J.C.Q.B.A. Appearances: Monica Wang, Duke Law Office for the Interim-Support Applicant Francoise H. Belzil, Biamonte LLP for the Beneficiaries (Interim-Support Respondents) Tracy King, The Estate House for the Personal Representative (observing)