2019 QCCQ 8038, 2019 QCCQ 8038

Tiberio c. Attorney General of Quebec - Ministère du Revenu 2019 QCCQ 8038 COURT OF QUEBEC “Small Claims Division” CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL “Civil Division” No.: 500-32-701306-179 DATE: NOVEMBER 22 ND , 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE JO ANN ZAOR, J.C.Q. ______________________________________________________________________ SERAFINO TIBERIO Plaintiff v.

ATTORNEY GENERAL OF QUEBEC - MINISTÈRE DU REVENU Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Serafino Tiberio claims $5,000 from the Attorney General of Quebec - Ministère du revenu (hereinafter “ Revenu Québec ”) in moral damages based on

section 10 of the Charter of Human Rights and Freedoms [1] (hereinafter “ the Charter ”). [ 2 ] Mr. Tiberio alleges that he is the victim of discrimination based on language after having received a notice of assessment drafted in French and in light of the defendant’s inability to provide him with a new, valid notice of assessment drafted in English. [ 3 ] Revenu Québec argues that it did not commit a fault or act in a discriminatory manner towards the plaintiff.

It admits having sent him a notice of assessment drafted in French, but notes that it has no obligation to communicate with the taxpayer in English. [ 4 ] Revenu Québec adds that it had translated the notice of assessment into English but that the first notice of assessment drafted in French remains the only original. ISSUES [ 5 ] To decide this matter, the Court will answer the following questions:

i) Is sending a notice of assessment drafted in French to an Anglophone taxpayer discriminatory within the meaning of the Charter ? ii) Is Revenu Québec’s inability to provide the plaintiff with a translation of his notice of assessment having the same legal value discriminatory within the meaning of the Charter ? iii) If so, is Mr. Tiberio entitled to the amount he is claiming? BACKGROUND

[ 6 ] Mr. Tiberio is originally from Italy but has lived in Quebec since the early 1950s. He said he did his schooling in English “by obligation” because, at the time, French schools did not welcome new immigrants into their ranks. [ 7 ] Mr. Tiberio spoke in English, but added that he has nothing against the French language. [ 8 ] The plaintiff explained that he has always addressed Revenu Québec in English, which always replied in the same language, at least up until 2013. [ 9 ] In fact, Mr.

Tiberio provided the example of a letter from Revenu Québec he received on January 21, 2013, which was drafted in French, leading him to request that future exchanges be in English (P-15). In Mr.

Tiberio’s opinion, that request triggered this dispute. [ 10 ] Proof positive to that effect is that, on or about April 28, 2015, he received a notice of assessment for his 2014 fiscal year from Revenu Québec drafted in French (D-1). [ 11 ] In a letter dated June 2, 2015, he asked the defendant to send him the document again in English, and he also wanted to know why he was being written to in French when since 1965, all of his notices of assessment were sent to him in English (P-2). [ 12 ] On August 2, 2015, Revenu Québec responded to his request, at least in part. Mr.

Tiberio received from Revenu Québec an English translation of the 2014 Notice of Assessment (P-5), but no answer to his question about why he had been addressed in French. [ 13 ] On August 11 and September 2, 2015, Mr. Tiberio asked the defendant again (P-6 and P-7). On September 8, 2015, he discussed his issue with objection agent Joseph Di Nero (P-8). Mr. Di Nero told him that he should have received his notice of assessment in English, but since he had already received it in French, Revenu Québec could only provide him with an English translation. [ 14 ] Dissatisfied with this response, Mr.

Tiberio continued his efforts. He sent additional letters to Revenu Québec (P-10 and P-11) and sought help from the Québec Ombudsman . [ 15 ] On February 22, 2016, Revenu Québec finally responded to his request (P-12). Benoit Boyer wrote: We have received the letter of October 13, 2015, that you sent to the Direction principale des relations avec la clientèle des particuliers to request a valid notice of assessment in English for the 2014 taxation year. In your letter, you also questioned whether you were illegally or accidently issued a notice of assessment for this taxation year in French.

Unfortunately, we cannot comply with your request for an original notice of assessment in English for the 2014 taxation year. However, further to your complaint dated September 3, 2015, we sent you an English translation of the notice assessment affixed with our seal and marked "Copie conforme à l’original" ("Certified true to the original") on October 2, 2015. This seal guarantees the notice of assessment’s integrity, conformity and confidentiality. We assure you that the translated document you received is valid to the same extent as the original.

A technical problem during the production of notices of assessment for the 2013 taxation year switched the language of communication in our computer system from English to French for your file. Note that this problem has been fixed. [ 16 ] On March 14, 2016, Mr. Tiberio sent new requests to Mr. Boyer. This time, he wanted to understand the legal basis behind Revenu Québec’s refusal to provide him with a valid notice of assessment for the 2014 fiscal year in English. He also refuted the explanation given concerning a technical problem and wanted to know what was behind this explanation (P-13).

He concluded his letter by demanding a satisfactory response by April 30, 2016, failing which he would institute legal proceedings. [ 17 ] On March 8, 2017, Mr. Tiberio ordered Revenu Québec to send him, within 10 days, a valid notice of assessment drafted in English, since he was not satisfied with the translation he had received.

[ 18 ] Revenu Québec did not respond to his request, hence the claim before the Small Claims Division instituted on March 29, 2017. ANALYSIS AND DECISION [ 19 ] The Court finds it useful to note that in civil matters, the burden of proof rests with the plaintiff according to the principle of the balance of probabilities: the plaintiff must submit to the judge evidence that surpasses and dominates that of the defendant. [2] [ 20 ] The party that bears the burden of proof must establish that the fact in dispute is not only possible, but also probable.

While the evidence adduced need not lead to absolute, scientific or mathematical certainty of the facts alleged, it must be clear, convincing and cogent to satisfy the balance of probabilities test, [3] rendering the fact in dispute probable. [4] [ 21 ] The analysis of the plaintiff’s proceeding takes into account

section 10 of the Charter , which states: 10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, gender identity or expression, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right. [ 22 ] In discussing that provision, Professor Mtre Christian Brunelle, now a judge of the Court of Québec stated that the Charter attaches particular importance to the scourge of discrimination. The objective of

section 10 of the Charter is to [ translation ] “fight discrimination” by ensuring every person’s right to equality in the recognition and exercise of their rights and freedoms. [5] [ 23 ] To find that there is discrimination within the meaning of

section 10 of the Charter , the plaintiff must establish, on a balance of probabilities: (1) that there is a “distinction, exclusion or preference”; (2) that this “distinction, exclusion or preference” is based on one of the grounds listed in the first paragraph of

section 10 of the Charter ; (3) that this “distinction, exclusion, or preference … has the effect of nullifying or impairing” the right to full and equal recognition and exercise of a human right or freedom. [6] [ 24 ] If the plaintiff succeeds, there is prima facie discrimination. [ 25 ] It is then up to the defendant to justify its decision or conduct. [ 26 ] These principles having been established let us consider the issues in dispute.

Is sending a notice of assessment drafted in French to an Anglophone taxpayer discriminatory within the meaning of the Charter ? [ 27 ] According to the Charter of the French language , [7] French is the language of Government, of instruction, of commerce and

business as well as the normal and everyday language of work: 1. French is the official language of Québec. 15. The civil administration shall draw up and publish its texts and documents in the official language. This

section does not apply to relations with persons outside Quebec, to publicity and communiqués carried by news media that publish in a language other than French, or to correspondence between the civil administration and natural persons when the latter address it in a language other than French . (Emphasis added.) [ 28 ] In light of the above, Revenu Québec must use French when writing and publishing its texts and documents, but may do otherwise when a natural person addresses it in a language other than French. [ 29 ] The evidence establishes that the plaintiff had always addressed the defendant in English. [ 30 ] That proven fact leads Mr.

Tiberio to argue that the receipt of the notice of assessment for the 2014 fiscal year, drafted in French, constitutes a violation of his right to full equality. [ 31 ] The defendant does not agree with this assertion, and the Court concurs. [ 32 ] Clearly, the plaintiff is erroneously interpreting

section 15 of the Charter of the French Language by giving it a binding force that it does not have. All that it provides is the possibility for the defendant to address a natural person in a language other than French. There is no obligation. [ 33 ] Also,

section 133 of The Constitution Act, 1867 , [8] is of no use to the plaintiff because that provision applies only to acts of Parliament where the use of both official languages is mandatory and to proceedings before the courts where the use of either language is permitted at the discretion of the person instituting the proceeding: 133.

Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those 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.

The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages. [ 34 ] In the Court’s view, Mr. Tiberio is claiming the violation of a right he is unable to prove. [ 35 ] Alternatively, if the Court were to continue its analysis, it would arrive at the same conclusion. [ 36 ] As explained above, it is up to Mr. Tiberio to establish the prima facie existence of differential treatment, that is, that a decision, a measure or conduct affects him or her differently from others to whom it may apply. [ 37 ] As regards the second element, Mr.

Tiberio has the burden of showing that there is a connection between a prohibited ground of discrimination, language in this case, and the distinction, exclusion or preference of which he complains, or in other words, that his language was a factor in the distinction, exclusion or preference. [ 38 ] Lastly, as to the third element, Mr. Tiberio must show that the distinction, exclusion or preference affects the full and equal exercise of a right or freedom guaranteed to him by the Charter . [ 39 ] In Andrews v.

Law Society of British Columbia , [9] at 174 and 175, McIntyre J. described discrimination as follows: ... [it is] a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed on others , or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.

Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed. (Emphasis added.) [ 40 ] In this case, it is true that the defendant did not respect its language policy (P-14) whereby, if taxpayers present a return in English, a notice of assessment is sent to them in that language. [ 41 ] On the other hand, the defendant explained that it has no legal obligation to do so and that here, its inability to follow its language policy resulted from a coding error in its computer system (P-12). [ 42 ] At the hearing, the defendant’s representative, Louise Smith, explained that the code indicating the language of communication was changed on April 14, 2014.

She stated that the system at the time did not allow her to identify the author of this change or to say whether it was an error related to the computer system. [ 43 ] The Court finds the defendant’s justifications sufficiently probative to rebut the allegation of prima facie discrimination. [ 44 ] Ultimately, the Court is of the view that the plaintiff’s treatment in 2015 was no different from that of any other Anglophone or Allophone wishing to obtain their notice of assessment in English.

[ 45 ] To be discriminatory, it would have been necessary to find an exclusion based on the simple fact that the plaintiff is an Anglophone, or evidence that he was sent a document in French because he is an Anglophone. That situation would have been indicative of a situation of direct discrimination. Here, the plaintiff proved nothing of the sort. [ 46 ] Thus, the Court is of the view that Mr. Tiberio was not treated differently and concludes that the sending of the 2014 notice of assessment, written in French by Revenu Québec to Mr. Tiberio, is not discriminatory within the meaning of the Charter .

Is Revenu Québec’s inability to provide the plaintiff with a translation of his notice of assessment having the same legal value discriminatory within the meaning of the Charter ? [ 47 ] The evidence establishes that Mr. Tiberio received an English translation of his notice of assessment at the top of which appeared the following statement: “This document is provided for information purposes only.

You must keep the original document.” (D-2). [ 48 ] Despite his numerous requests to obtain a valid notice of assessment written in English and not a translation, Revenu Québec turned a deaf ear. [ 49 ] According to the plaintiff, that refusal by the defendant constitutes discrimination against taxpayers like him who use English in their communications with the defendant.

His research allows him to say that several hundred thousand taxpayers are in the same situation as him. [ 50 ] That is the essence of the plaintiff’s evidence. [ 51 ] The Court notes that, whatever form discrimination takes, the Charter -based proceeding instituted involves the two - step analysis referred to above. [ 52 ] This means that as regards the first element of discrimination, the plaintiff must prove the existence of differential treatment, which is embodied here in the demonstration that Revenu Québec provides a second notice of assessment written in French to those who request it, and not a translation that is only informative. [ 53 ] In this case, Mr.

Tiberio has not established that fact, and for good reason. [ 54 ] As was made clear in Ms. Smith’s testimony, Revenu Québec cannot simply issue a second “original” notice of assessment. That impossibility is explained by the number sequence attributed to annual notices of assessment. It is also justified because of the date of issue of the original notice, which triggers the rights and remedies of the taxpayer against the State. [ 55 ] Ms.

Smith explained that, in short, regardless of the language into which a notice of assessment is translated, Revenu Québec can issue only one original. [ 56 ] In the circumstances, the Court finds that Revenu Québec’s inability to provide Mr. Tiberio with a “second original” is widespread. [ 57 ] In other words, if Revenu Québec cannot give official status to the English translation of Mr. Tiberio’s notice of assessment, it cannot give official status to the French translation of a notice of assessment either.

There is therefore no difference in the treatment of Francophones and Anglophones. [ 58 ] Thus, it is agreed that regardless of the language into which the notice is translated, the document remains only a translation, and Mr. Tiberio failed to establish the second element, namely that this "distinction, exclusion or preference" is based on one of the grounds listed in the first paragraph of

section 10 of the Charter . [ 59 ] Finally, as regards the third element, the plaintiff must establish that the distinction, exclusion or preference has the effect of nullifying or impairing the right to full and equal recognition and exercise of a human right or freedom. [ 60 ] The plaintiff’s evidence here is incomplete on the evidence of injury.

Hence, there is no need to examine it further. [ 61 ] As a result, the plaintiff did not discharge his burden of proving that Revenu Québec’s inability to provide him with a translation of his notice of assessment having the same legal value is discriminatory under the Charter . [ 62 ] In light of that conclusion, there is no need for the Court to consider the last issue. FOR THESE REASONS, the Court: DISMISSES the plaintiff’s action; THE WHOLE , with legal costs. __________________________________ JO ANN ZAOR, J.C.Q.

Date of hearing: September 23, 2019