Sarb Sandhu Petitioner v. Provincial Court Judge Jane McKinnon, 2012 BCSC 1064

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Sandhu v. British Columbia (Provincial Court), 2012 BCSC 1064 Date: 20120717 Docket: S113856 Registry: Vancouver Between: Sarb Sandhu Petitioner And Provincial Court Judge Jane McKinnon Respondent Before: The Honourable Justice Gropper On judicial review from Provincial Court decision dated May 16, 2011 (Nahal v. Sidhu, Richmond Docket No. C22921) Reasons for Judgment Counsel for the Petitioner: R.R. Hira, QC S.M.R. ConroyCounsel for the Respondent: J.J.M. Arvay, QC B. ElwoodPlace and Date of Hearing: Vancouver, B.C.

April 12 and 24, 2012Place and Date of Judgment: Vancouver, B.C. July 17, 2012 Introduction [1] Mr. Sandhu applies under the provisions of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 (JRPA) seeking judicialreview of the May 16, 2011, decision of Provincial Court Judge Jane McKinnon. Specifically, Mr.

Sandhu challenges McKinnon P.C.J.’sdecision that he could not act as an interpreter to a party in a small claims action in the Provincial Court in Richmond, British Columbia.He asserts that the respondent ought to have held a voir dire if she had a legitimate reason to doubt the interpreter’s competence inaccordance with the principles from R. v. Tran, (SCC), [1994] 2 S.C.R. 951 and R. v. Rybak, 2008 ONCA 354. Issues [2] The issues in dispute are: 1. Did McKinnon P.C.J. make a “decision” which is subject to a judicial review? 2. Does the petitioner have standing? 3. What is the appropriate standard of review? 4.

Was the decision reasonable and/or correct? 5. Did McKinnon P.C.J. fetter her discretion or breach a duty of fairness? 6. Was there reasonable apprehension of bias? 7. Should the petitioner be awarded his costs?

The Role of Respondent’s Counsel [3] Before I discuss the issues as outlined above, I will first address the role of counsel for the respondent in this action. [4] The role of counsel for a tribunal whose decision is impugned is thoroughly canvassed in the jurisprudence. In Legal ServicesSociety v.

Brahan Provincial Judge (1983), (BC SC), 46 B.C.L.R. 32 (S.C.), the court expressed the view that it wasnot appropriate for counsel on behalf of a Provincial Court Judge to appear on judicial review and make submissions in favour ofupholding an order by the judge: at 38. [5] The respondent argues that this case is unique because Mr. Sandhu seeks an order in the nature of certiorari. He has framed hispetition in terms that impugn McKinnon P.C.J.’s integrity and her conduct in the courtroom. He also seeks costs, including special costs,against Judge McKinnon personally.

She asserts that there is no other party to provide the court with an opposing point of view to that ofthe petitioner and no party to defend her judicial independence, professional integrity and financial interest. [6] I agree that these circumstances establish the basis for allowing a tribunal to make submissions. [7] Timberwolf Log Trading Ltd. v. Commissioner (Pursuant to s. 142.11 of the Forest Act), 2011 BCCA 70 describes three“encroachments” to the rule restricting the tribunal’s participation in the judicial review of its decision at para. 11:

a) where the question is whether the tribunal has made a patently unreasonable

interpretation of a statutory right to be heard;

b) where the tribunal is defending a long standing policy; and

c) where there is no one else to argue the other side. [8] In Caimaw v. Paccar of Canada Ltd., (SCC), [1989] 2 S.C.R. 983 at 1016, the court expressed “completeagreement” with the view expressed by Taggart J.A. in B.C.G.E.U. v. Indust. Rel. Council (1988), (BC CA), 26B.C.L.R. (2d) 145 (C.A.) who stated at 153: ... [W]hen the issue becomes, as it does in relation to the patently unreasonable test, whether the decision was reasonable, there is apowerful policy reason in favour of permitting the tribunal to make submissions.

The policy reasons outlined by Taggart J.A. include the tribunal’s specialized jurisdiction or expertise and its ability to draw the court’sattention to those considerations where the parties to this dispute may not adequately place those considerations before the court. [9] In the circumstances here, particularly regarding the allegations by the petitioner that McKinnon P.C.J. exceeded herjurisdiction, breached a duty of fairness and demonstrated a reasonable apprehension of bias, I allowed the respondent to makesubmissions on the merits. There is no other party to address the petitioner’s submissions.

The Record [10] At the outset of the hearing, I ruled that the record includes the digital audio recording of the Provincial Court proceedings andthe transcript which was produced from that recording. Background [11] On May 16, 2011, Mr. Sandhu was retained by Gordev Nahal to provide translation and

interpretation services for him during asmall claims trial: Nahal v. Sidhu, Richmond Registry C22921. The trial was called at approximately 9:41 a.m. McKinnon P.C.J.requested to speak to the clerk outside the courtroom and the trial was stood down until 10:27 a.m. [12] Before the trial began, McKinnon P.C.J. advised Mr. Nahal that if he could not speak English well enough to be comfortablewith the court process, he would need to arrange for a court-certified interpreter. Mr. Nahal responded “yes.” [13] McKinnon P.C.J. then advised the parties that for the previous hour she had undertaken to determine whether Mr.

Sidhu was acourt-certified interpreter. Just after the case was called, but before the trial started, she said to Mr. Sandhu, “You are not on the list. Youcannot act as an interpreter in this matter.” [14] McKinnon P.C.J. explained to Mr. Nahal (and asked Mr. Sandhu to translate) that it was necessary that he have a court-certifiedinterpreter. She said “the courts of the province maintain a list of court-certified interpreters. People in the registry have been trying toassist by trying to ascertain if Mr. Sandhu is on the list and he is not.” She offered a series of options to Mr.

Nahal, including anadjournment to allow him to find a court-certified interpreter or to allow Mr. Sandhu to provide “proof satisfactory to this court that he iscurrently court certified and approved.” [15] The record of the proceedings demonstrates that Mr. Sandhu attempted to speak directly to McKinnon P.C.J. but she was notwilling to engage in a discussion. She adjourned the matter until 1:30 p.m. to provide Mr.

Sandhu an opportunity to “come up with thenecessary material to indicate that he should be on the list but through some sort of administrative error he is not on it.” [16] When the case was recalled at 1:43 p.m., Mr. Sandhu was represented by Ravi Hira, Q.C. He did not represent either party inthe civil matter. Mr. Hira began addressing the court on behalf of Mr. Sandhu. He argued that there was no “court certified list ofinterpreters.” He explained that there was a list of interpreters who are on contract with the Ministry of the Attorney General to provide

interpretation services in criminal courts. They may be called on short notice and their services are paid for by the Ministry. He continued, “Mr. Sandhu has been on that list for some time. Unfortunately there is a dispute between him and the Attorney General so he is not on the list.” [ 17 ] Mr. Hira stated that Mr. Sandhu was entitled to and had been retained privately to interpret in civil matters in Supreme Court, on discoveries, and in Small Claims Court. Mr. Hira suggested that McKinnon P.C.J. was “mistaken in believing that there is a court certified list.” [ 18 ] McKinnon P.C.J. refused to hear from Mr.

Hira. She commented, “this can’t proceed in this way ... Mr. Sandhu has no standing, he is merely, as far as I understand … it, a person who is retained by one of the parties in this civil litigation to assist …” [ 19 ] Mr. Hira urged McKinnon P.C.J. to conduct a voir dire into Mr. Sandhu’s competence to interpret. She declined to do so and said. “I cannot rule on somebody’s competency as an interpreter in this way. … I can’t possibly determine if Mr. Sandhu is competent or not.

It is not for me to do that.” She refused to hold a voir dire in the small claims matter or under the Small Claims Act, R.S.B.C. 1996, c. 430. [ 20 ] While refusing to hear Mr. Hira or Mr. Sandhu, McKinnon P.C.J. observed that she had no difficulty with Mr. Sandhu and the quality of his work. Having so stated, however, she was not clear on her jurisdiction to entertain Mr. Sandhu’s application. [ 21 ] There followed a discussion about the list of court-certified interpreters and whether McKinnon P.C.J. had seen the list or read the list or had only been told by the court manager that Mr.

Sandhu was not on the list. [ 22 ] Ultimately, McKinnon P.C.J. would not allow Mr. Sandhu’s counsel to submit evidence and refused to hear or consider his submissions. She adjourned the trial. The Court-Certified List [ 23 ] Throughout the record, McKinnon P.C.J. refers to a “list of court certified interpreters.” Mr. Hira asserts, and he is correct, that there is no such list. The Provincial Court does not certify interpreters. The evidence establishes that the term “court certified interpreter” is a misnomer; there is, however, a list of interpreters maintained by the Ministry of the Attorney General.

As noted, Mr. Sandhu is not on that list. [ 24 ] The expression “court certified interpreters” is referred to in the Provincial Court Small Claims Handbook (Handbook) , a loose- leaf publication of the Continuing Legal Education Society of British Columbia (CLE). Under the heading “General Advice” at § 1.8 it states: It should be kept in mind that the parties (or their counsel) must arrange for court certified interpreters if they, or their witnesses, are not fluent in English.

The registry maintains a list of court certified interpreters and the party using the interpreter is responsible for the cost of the service. [ 25 ] There are other references in the Handbook to court-certified interpreters at § 5.6, § 5.20 and § 6.18. [ 26 ] Deborah McLeod, a library technician at the courthouse in Vancouver, deposes that the Handbook is authored by John Shields. Contributors include numerous judges on the Provincial Court. The editorial board is made up of senior counsel and judges. Ms.

McLeod says that the Handbook is a widely used resource for judges, lawyers and litigants in the Provincial Court. Copies and annual updates are widely distributed to judges’ chambers. In particular, McKinnon P.C.J. has a copy of the Handbook and receives annual updates. [ 27 ] Annette Duben is a procurement coordinator for the Court Services Branch of the Ministry of Attorney General. In her affidavit, she describes her duties as “receiving, reviewing and approving applications from persons who would like to offer court interpreter services to the branch of the Ministry of Attorney General.” Ms.

Duben says the branch maintains a list of those interpreters who have entered into an agreement with it for the provision of services in criminal proceedings, family law proceedings in Provincial Court, traffic court cases, municipal bylaw cases and other cases by court order. She says that the sole reason for the branch entering into the agreement with interpreters is because the Ministry is responsible for bearing the costs of

interpretation services in these proceedings. Before the Ministry enters into an agreement with an interpreter, Ms. Duben states that the Ministry must be satisfied that the interpreter is qualified to provide those services. [ 28 ] Ms. Duben says that persons wishing to be on the list of court interpreters maintained by the branch must make an application and demonstrate that they have been accredited as a court interpreter by a recognized institution. If no testing is available for the language that they interpret, the applicant must provide qualifying experience.

The application materials require consent to a criminal record check. [ 29 ] Ms. Duben deposes that if an applicant has the requisite qualifications to provide

interpretation services to the court, the Ministry enters into a contract with that person, which provides that they will be called on an “as and when needed basis.” The interpreters name is included on the list which is circulated to all court registries in the province. Ms. Duben states that litigants requiring an interpreter in the kinds of proceedings set out contact the interpreter clerk in the registry in which the proceedings have been commenced to arrange for an interpreter. [ 30 ] Ms. Duben describes some of the reasons why a person who was on the list of interpreters may no longer be on the list. The person may have stopped working in proceedings to which the Ministry provides

interpretation or may have ceased to provide

interpretation services. The person may also have been removed from the list by the Ministry if he or she was charged or convicted of a criminal offense, incompetent, untrustworthy or failed to show up in court on time on a regular basis. [ 31 ] Ms. Duben does not refer to Mr. Sandhu particularly or to the reason that he is not on the list maintained by the Ministry.

[ 32 ] Ms. Duben addresses the Handbook’s reference to a “list of court certified interpreters.” She says the list of interpreters maintained by the branch is not a list of interpreters who have been formally certified by the Provincial Court. It is a list of interpreters who have entered into an agreement with the Ministry as an accredited or non-accredited court interpreter and have demonstrated to the satisfaction of the Ministry that they are otherwise qualified to act as a court interpreter. Judicial Review Procedure Act [ 33 ] The applicable sections of the JRPA provide as follows :

Definitions 1 In this Act: ... " decision " includes a determination or order; ... " statutory power " means a power or right conferred by an enactment (

a) to make a regulation, rule, bylaw or order, (

b) to exercise a statutory power of decision, (

c) to require a person to do or to refrain from doing

an act or thing that, but for that requirement, the person would not be required by law to do or to refrain from doing, (

d) to do

an act or thing that would, but for that power or right, be a breach of a legal right of any person, or (

e) to make an investigation or inquiry into a person's legal right, power, privilege, immunity, duty or liability; " statutory power of decision " means a power or right conferred by an enactment to make a decision deciding or prescribing (

a) the legal rights, powers, privileges, immunities, duties or liabilities of a person, or (

b) the eligibility of a person to receive, or to continue to receive, a benefit or licence, whether or not the person is legally entitled to it, and includes the powers of the Provincial Court; "tribunal" means one or more persons, whether or not incorporated and however described, on whom a statutory power of decision is conferred. Application for judicial review 2

(1) An application for judicial review must be brought by way of a petition proceeding.

(2) On an application for judicial review, the court may grant any relief that the applicant would be entitled to in any one or more of the proceedings for: (

a) relief in the nature of mandamus, prohibition or certiorari; (

b) a declaration or injunction, or both, in relation to the exercise, refusal to exercise, or proposed or purported exercise, of a statutory power. Error of law 3 The court's power to set aside a decision because of error of law on the face of the record on an application for relief in the nature of certiorari is extended so that it applies to an application for judicial review in relation to a decision made in the exercise of a statutory power of decision to the extent it is not limited or precluded by the enactment conferring the power of decision. Discussion and Analysis Did McKinnon P.C.J. make a decision?

Position of the Parties [ 34 ] Mr. Sandhu says that almost all power exercised by a public authority may be reviewed by this Court in accordance with the JRPA : Western Stevedoring Co. Ltd. v. W.C.B., 2005 BCSC 1650 at para. 23 . Here, the decision under review is: “You are not on the list; you cannot act as an interpreter in this matter.” Mr. Sandhu also relies on the definition of “decision” as set out in s. 1 of the JRPA which

includes a determination or order. [35] Mr. Sandhu argues that the decision is reviewable as an improper exercise of statutory power of decision or as an error of law onthe face of the record. He refers to Caputo v. W.C.B. (B.C.) (1986), (BC SC), 26 Admin. L.R. 113 (S.C.), which heldthat the court can set aside a decision because of error of law on the face of the record even if it was not made in the exercise of statutorypower: at 117-118. He also refers to Wood and Lauder et al. v.

Siwak et al., 2000 BCSC 397, where the court determined that s. 3 of theJRPA is available to review a decision of a Provincial Court Judge where there is an error on the face of the record or where the ruling isin excess of jurisdiction: at paras. 10, 12. [36] The respondent argues that judicial review is available from decisions, not from reasons for decisions. The only decision whichMcKinnon P.C.J. made in respect of the civil matter before her was to adjourn the trial. Conclusion [37] In my view, the broad definition of “decision” in the JRPA and the

interpretation of the JRPA in Western Stevedoring supportsMr. Sandhu’s assertion. In respect of whether a tribunal’s decision is reviewable, Mr. Justice Groberman stated at para. 23 of WesternStevedoring: [23] In the result, the JRPA affirms the very broad judicial review jurisdiction that the Supreme Court enjoyed at common law, andfurther expands the remedial jurisdiction in respect of exercises of statutory powers. Almost all power exercised by a public authoritymay be reviewed by the court under the JRPA. ... Does the petitioner have standing? Position of the Parties [38] Mr.

Sandhu asserts that he has sufficient interest in the matter to bring this petition as he is an affected person who has been“exceptionally prejudiced by the impugned decision.”

Interpretation services are his livelihood and he has been denied the privilege ofinterpreting for Mr. Nahal in his small claims matter. Furthermore, he did not have an opportunity to demonstrate that he was competentto perform

interpretation services in McKinnon P.C.J.’s courtroom. He was disqualified on the basis that his name was not on a court-certified list, which does not exist. [39] Mr. Sandhu says that he has standing to bring this petition because it affected a privilege he enjoyed and his eligibility toreceive a benefit; he was denied the privilege and benefit of interpreting in Small Claims Court. [40] In that regard, Mr. Sandhu refers to Saanich Inlet Preservations Society v.

Cowichan Valley Regional District (1983), (BC CA), 44 B.C.L.R. 121 (C.A.) at 126-128: ...[E]ach statute must be examined in the light of the powers and duties of the body whose activity is in question, and in the light of theallegations made by the party seeking a review in the courts. Decisions relating to standing under one statute may not be of muchassistance to the decision concerning another statute. ... Guidance of a general nature has been afforded by the judgments in Inland Revenue Commrs. v. Nat.

Fed. of Self-Employed and SmallBusinesses Ltd., [1981] 2 All E.R. 93 (H.L.). ... ... [where] Lord Fraser of Tullybelton said at p. 108 On what principle, then, is the sufficiency of interest to be judged? All are agreed that a direct financial or legal interest is not nowrequired ... There is also general agreement that a mere busybody does not have a sufficient interest.

The difficulty is, in between thoseextremes, to distinguish between the desire of the busybody to interfere in other people's affairs and the interest of the person affected byor having a reasonable concern with the matter to which the application relates... The correct approach in such a case is, in my opinion, to look at the statute under which the duty arises, and to see whether it gives anyexpress or implied right to persons in the position of the applicant to complain of the alleged unlawful act or omission. [41] The decision also affected the interests of Mr. Nahal who wished Mr.

Sandhu to act as the interpreter in his small claims matter. [42] Mr. Sandhu also argues that he has standing to bring this petition because he was owed a duty of fairness by the P.C.J., whichshe breached. Specifically, she invited Mr. Sandhu to show what his status as an interpreter was and then refused to hear him or hiscounsel when he returned to court to do so. He relies on Trinh v.

Acadie-Bathurst Health Authority (2005), 2005 NBQB 103 ,287 N.B.R. 150 (Q.B.), which describes the high standard of natural justice and fairness required of a tribunal where it is considering“one’s right to continue its profession or employment is at stake”: at para 35. [43] Mr. Sandhu further asserts that he has standing to seek the court’s review under the JRPA in accordance with

section 3 as anerror of law on the face of the record. [44] The respondent says that Mr. Sandhu does not have standing to challenge McKinnon P.C.J.’s decision that Mr. Nahal requiredan interpreter from the list of interpreters maintained in the registry. Relying on Law Society of Newfoundland v. Nixon (1992), (NL CA), 94 D.L.R. (4th) 464 (Nfld. C.A.), the respondent submits that while Mr. Sandhu was affected by the decision ofMcKinnon P.C.J., it does not translate into standing to challenge the ruling.

A lay advocate may be denied the privilege of representing alitigant (as in Nixon) or an expert witness may be denied the privilege of testifying in court. Determining whether a person is sufficiently

affected or aggrieved by the decision of a statutory tribunal to have standing to challenge the decision does not depend only on thegrievance. It also depends on the proper

interpretation of the legislation under which the decision is made and whether it gives rise to animplied right to persons in the position of Mr. Sandhu to seek judicial review: Saanich Inlet, at 127-128. [45] The respondent refers to section 2(1) of the Small Claims Act which defines its purpose as “to allow people who bring claims tothe Provincial Court to have them resolved … in a just, speedy, inexpensive, and simple manner.” [46] Mr. Nahal, the respondent argues, may have had standing to seek judicial review of Judge McKinnon’s decision because he, asa litigant, was denied his choice of interpreter.

However, that is not an issue here. [47] Mr. Sandhu was not a litigant in Provincial Court and McKinnon P.C.J. did not make an order disposing of his legal rightswithin the contemplation of the Small Claims Act. The decision was a ruling in an action between two litigants. It is not againstMr. Sandhu directly. Further, the respondent argues, there is no evidence of Mr. Sandhu’s reputation being harmed by the decision. [48] The respondent says that while Mr. Sandhu may be affected by the ruling, many people are affected by rulings of the ProvincialCourt.

This does not mean that they all have standing to challenge those rulings. She suggests that Mr. Sandhu is in the same position asan expert witness whom the court determines cannot give evidence in a trial where, for example, the court finds that expert to be biasedor an advocate for a party. Such a decision may affect that expert’s reputation and his or her livelihood, but the expert does not havestanding to challenge the ruling. Conclusion [49] I find that Mr. Sandhu does not have standing to bring this petition. He was not a party to the small claims action before therespondent.

The decision may support an argument that Mr. Nahal has standing under the JRPA to assert that the decision affected hiswish to have Mr. Sandhu act as interpreter, but that is not the issue before me. The decision may also affect Mr. Sandhu’s ability toprovide

interpretation services to Mr. Nahal. This does not, however, result in the conclusion that Mr. Sandhu has standing in this judicialreview. I accept the respondent’s analogy to an expert witness who is disqualified from giving evidence is apt. [50] Mr. Sandhu also argues, however, that he has standing on the basis that he was denied procedural fairness by the ProvincialCourt Judge. She concluded that because she was there to decide the case between the parties, she would not hear from Mr. Sandhu orMr. Hira on his behalf.

I do not intend to explore McKinnon P.C.J.’s ruling in that regard, the question to consider is whether Mr. Sandhuwas entitled to procedural fairness or natural justice by the P.C.J. Although, I do note that Mr. Hira did not request that Mr. Sandhu begranted standing before Judge McKinnon. [51] In Baker v. Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, the Courtdiscusses some of the factors to consider in relation to the existence of a duty of fairness and its content: at paras 21-28.

The factors are: 1. the nature of the decision; 2. the statutory scheme; 3. the importance of the decision to the affected individual; 4. the legitimate expectations of the person challenging the decision; and 5. the choice of procedure. The list of factors is not exhaustive. A court may consider other factors it determines are relevant. [52] Applying those factors to the case at bar, I find that the decision about whether an interpreter is qualified to interpret is relatedto ensuring that the litigants receive a fair trial.

The Provincial Court Judge considered the qualifications of the interpreter in that contextand explained that to Mr. Nahal. [53] The statuary scheme mandates that the proceedings be conducted in a just, speedy, inexpensive and simple matter. The SmallClaims Act describes its purpose in s. 2 as: 2

(1) The purpose of this Act and the rules is to allow people who bring claims to the Provincial Court to have them resolved and to haveenforcement proceedings concluded in a just, speedy, inexpensive and simple manner.

(2) Subject to this Act and the rules, in conducting a hearing the Provincial Court may make any order or give any direction it thinksnecessary to achieve the purpose of this Act and the rules. [54] Assessing the qualifications of every interpreter who appears in small claims court interferes with that purpose. A ProvincialCourt Judge is specifically imbued with the statutory authority to make a direction to achieve that purpose, including declining to hold avoir dire into the qualifications of the interpreter. [55] While Mr.

Sandhu maintains that he had an expectation that he could participate in an action to which he was not a party, I findthat such an expectation is not reasonable or legitimate. The court need not grant participatory rights to anyone other than the litigants. [56] There is nothing in the Small Claims Act or Small Claims Rules, B.C. Reg. 261/93, which require a Judge to conduct a voir direto assess the qualifications of an interpreter.

The principles in Tran and Rybak, based upon the right of an accused to have a fair hearingunder the Charter, are not transferable to a non-party participant in a small claims matter. [57] I, therefore, conclude that McKinnon P.C.J. did not owe Mr. Sandhu a duty of fairness. His argument that he has standing on

that basis must also fail. [ 58 ] My determination that Mr. Sandhu does not have standing to bring this petition is dispositive and the basis upon which the petition can be dismissed. However, in the event that I am wrong in my conclusion that Mr. Sandhu does not have standing, I will consider the remaining issues. What is the appropriate standard of review? Position of the Parties [ 59 ] Mr. Sandhu argues that the respondent erred in law, exceeded her jurisdiction and fettered her discretion in her decision. Relying on Dunsmuir v.

New Brunswick , 2008 SCC 9 , the petitioner argues that the standard of correctness applies in respect of jurisdictional questions and some other questions of law. In Dunsmuir , the Court notes at para. 50 : [50] ... When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. … [ 60 ] Mr. Sandhu further argues that where there is a breach of procedural fairness and natural justice, no deference is owed to the decision maker: C.U.P.E. v.

Ontario (Minister of Labour) , 2003 SCC 29 . [ 61 ] The respondent asserts that the proper standard of review is reasonableness, relying on Dunsmuir which clarified that the courts must adopt “a robust view of jurisdiction” and that true questions of jurisdiction “will be narrow”: at para. 59.

On judicial review, the courts must show deference to the tribunal, even on questions of pure law, when the tribunal is interpreting or applying its home statute: at para. 54 The correctness standard of review will only apply on true questions of jurisdiction in the narrow sense of the tribunal’s authority to consider the matter in question: at para. 59. [ 62 ] The respondent asserts that the Provincial Court as a statutory body imbues its judges with the powers necessary to enable them to decide the cases in accordance with section 2(1) of the Small Claims Act , which includes the power to develop judge-made rules for the purpose of deciding cases “in a just, speedy, inexpensive and simple manner.” She also asserts that decisions may be made in accordance with Rule 10 of the Small Claims Rules , which provides in subsection (1) that “A judge may conduct a trial without complying with the formal rules of procedure and evidence.” [ 63 ] The respondent also argues McKinnon P.C.J. did not owe Mr.

Sandhu any duty of procedural fairness and natural justice. Such a duty is owed only to the litigants in the proceeding. Conclusion [ 64 ] The applicable standard of review is reasonableness. As noted in Farrell v. TD Waterhouse Canada Inc. , 2010 BCSC 1930 aff’d 2011 BCCA 61 , the appropriate standard of review to be applied to an interlocutory decision of the Small Claims Court is reasonableness: at paras. 22 to 25. The court emphasized that deference is to be granted to a Provincial Court Judge and that questions coming before a Judge may give rise to a number of possible and reasonable conclusions.

The court refers to Dunsmuir at para. 47 which states: [47] ... In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within a decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 65 ] I am unable to find any basis upon which the standard of correctness ought to apply to the decision of McKinnon P.C.J. in respect of whether Mr. Sandhu could interpret in Mr. Nahal’s small claims matter.

I have already addressed whether Mr. Sandhu was owed a duty of procedural fairness and natural justice and conclude that he was not. Was the decision reasonable? Position of the parties [ 66 ] Mr. Sandhu argues that the respondent’s repeatedly referring to a list of “court certified interpreters” and her reliance on the fact that Mr. Sandhu was not on that list is not reasonable, principally because there is no such list. Further, he argues that it is a role of the court, acting judicially, to decide if an interpreter is qualified to interpret in the proceedings.

It is not a role to be designated to court staff. [ 67 ] Mr. Sandhu argues that reliance on the list of interpreters maintained by the branch is misplaced because the list of interpreters contains names of those who have entered into an agreement with the Ministry and has no weight beyond the fact that the contractual relationship exists. Finally, Mr. Sandhu asserts that in her slavish reliance on the Ministry’s list, McKinnon P.C.J. did not allow any other facts to be admitted into evidence regarding Mr. Sandhu’s qualifications, nor would she allow submissions on the law to be made by Mr. Sandhu’s counsel.

Her decision therefore does not require deference and cannot be found to be reasonable. [ 68 ] The respondent asserts that Judge McKinnon’s decision accords with the Handbook which states that litigants who are not fluent in English must arrange for a “court certified interpreter” and that the registry maintains a “list of court certified interpreters” for this purpose. The respondent says that the Handbook is a widely used resource for judges, lawyers and litigants in the Provincial Court.

While it may not be a source of jurisdiction, it can be considered an authoritative source of practice and procedure. [ 69 ] The respondent continues:

A rule of practice of this nature is not unreasonable. Provincial Court Judges deal on a daily basis with unrepresented litigants, many ofwhom require translators and interpreters. Judges of the Court require some assurance that the people who are presented to them asinterpreters have the necessary skill and integrity to contribute to a proper and efficient trial. The Judges of the Court simply do not havethe time (or the language skills) to conduct an inquiry or voir dire into the qualifications of each and every person who representshimself or herself to be a qualified interpreter. [70] The respondent argues that

section 2 of the Small Claims Act provides the jurisdiction for a Provincial Court Judge to adopt arule of practice requiring the prequalification of interpreters. While the list maintained by the registry may be compiled for differentpurposes, the respondent asserts that it provides a relevant and reasonable basis for a Provincial Court Judge to determine that a person isqualified to act as an interpreter in a small claims trial. Conclusion [71] For the reasons I have already stated (at para. 57) Mr.

Sandhu’s reliance on the principles of Tran and Rybak are misplaced.Those cases do not undermine a Provincial Court Judge’s reliance on a list maintained by the registry. The practical aspects of doing soare fully explained in the respondent’s argument. The Judges of the Court must conduct a proper and efficient trial and a “requirement”to conduct an inquiry or voir dire about each interpreter’s qualifications runs contrary to that statutory obligation. [72] Finally, I agree with the respondent that McKinnon P.C.J.’s direction that Mr.

Nahal required an interpreter from the listmaintained by the registry falls within a range of possible, acceptable outcomes which are defensible in respect of the facts. It is also areasonable decision in law. Did McKinnon P.C.J. fetter her discretion or breach a duty of fairness? Position of the parties [73] Mr. Sandhu argues that the respondent fettered her discretion by allowing informal policies and guidelines to become invariablerules which apply automatically in every case by her adherence to the list of interpreters maintained by the registry. [74] Mr.

Sandhu refers to the decision of Fahlman, by his guardian ad litem Fiona Gow v. Community Living British Columbia etal., 2007 BCCA 15 at para. 47: [47] ... Professor Mullan observes how courts have admonished against informal policies and guidelines becoming invariable rulesapplied automatically in every case. Individual matters warrant individual attention.

Accordingly, a statutory authority's discretionshould not be so fettered as to preclude individualized consideration of particular cases. [75] The respondent argues that the rule against fettering of discretion is concerned with the exercise of statutory powers. Thequestions are whether the decision maker refused to exercise a jurisdiction provided by the statute or failed to determine the question shewas required by the statute to determine: Re Lloyd and Superintendent or Motor Vehicles (1971), (BC CA), 20 D.L.R.(3d) 181 (B.C.C.A.) at 188.

Conclusion [76] There is nothing in the Small Claims Act or Small Claims Rules which requires a Provincial Court Judge to certify interpreters.McKinnon P.C.J. was required to decide the case before her. She was not required to consider Mr. Sandhu’s application to act as aninterpreter. Nonetheless, she adopted a reasonable basis upon which to exercise discretion. [77] I cannot, therefore, find that Judge McKinnon failed to decide a question she was required to or refused to exercise ajurisdiction. [78] I have already addressed whether Mr.

Sandhu was owed a duty of procedural fairness or the right to be heard and I havedetermined that he is not. Was there a reasonable apprehension of bias? Position of the parties [79] Mr. Sandhu says that a reasonable apprehension of bias arose out of the proceedings which is apparent from Judge McKinnon’sconduct and comments, and from the tone of the proceedings. He refers to the reasonable apprehension of bias principles outlined inTaylor Ventures Ltd. (Trustee of) v. Taylor, 2005 BCCA 350 at para. 7. [80] Mr.

Sandhu argues that the transcript of the proceedings demonstrate that they were confrontational, argumentative anddisruptive. They were not directed at ensuring clarity on an issue. He asserts that McKinnon P.C.J. prejudged the issue that Mr. Sandhucould not provide

interpretation services in the civil matter because he was “not on the list” and refused to consider Mr. Sandhu’sposition or that of his counsel. [81] The respondent argues that the test for finding a reasonable apprehension of bias requires that the apprehension “must be areasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the requiredinformation”: Committee for Justice and Liberty et al. v. National Energy Board et al., (SCC), [1978] 1 S.C.R. 369 at394.

Conclusion [ 82 ] I have already determined that Mr. Sandhu did not have a right to be heard or owed a duty of fairness. Neither he, nor Mr. Hara on his behalf, was entitled to make submissions or present evidence. The transcript demonstrates that McKinnon P.C.J. attempted to explain to Mr. Nahal her practice of requiring that interpreters be on the list of court-certified interpreters. She allowed Mr.

Sandhu an opportunity to investigate why he was not on the list and whether that was an error. [ 83 ] Again, for the reasons that I have explained, it was not improper for McKinnon P.C.J. to rely on the list of court interpreters maintained by the registry and her doing so does not indicate bias. In regard to her conduct, her reaction was reasonable on the basis that her mandate was to address the dispute between Mr. Nahal and Mr. Sidhu. Mr. Sandhu’s role as interpreter or his insistence that he should be entitled to interpret in the small claims matter was tangential to the entire proceeding.

It is clear that McKinnon P.C.J. was attempting to get the matter under way and not be distracted by unnecessary assertions by Mr. Sandhu. [ 84 ] I find no basis upon which to conclude that there was any reasonable apprehension of bias. Disposition [ 85 ] The petition is dismissed. Costs [ 86 ] As Mr. Sandhu has been unsuccessful, it is unnecessary to address his claim for costs. The respondent is not seeking costs. “Gropper J.”