2017 FCA 80, 2017 FCA 80

[2018] 1 F.C.R. 495 A-145-16 2017 FCA 80 Industrielle Alliance, Assurance et services financiers Inc. ( Appellant ) v. Kassem Mazraani ( Respondent ) and Minister of National Revenue ( Respondent ) Indexed as: Industrielle Alliance, Assurance et services financiers Inc. v. Mazraani Federal Court of Appeal, Gauthier, Boivin and de Montigny JJ.A.—Montréal, April 5; Ottawa, April 20, 2017. Official Languages — Appeal from Tax Court of Canada (T.C.C.) decision allowing respondent Kassem Mazraani’s appeal, determining that he occupied insurable employment within meaning of Employment Insurance Act , s. 5(1) (

a) while working with appellant — Appellant submitting T.C.C. Judge (Judge) violating official language rights of witnesses, counsel — Judge accepting “pragmatic” compromise, coaxing counsel, witnesses to use English — Whether official language rights of witnesses, counsel violated — Incumbent upon Judge to adjourn hearing in order to arrange for

interpretation services — Judge failing to uphold positive duty to ensure witnesses heard in official language of their choice — Fact of being bilingual not extinguishing constitutional right to speak in official language of one’s choice when appearing before federal court — Not open to Judge to seek shortcut around official language rights — Pragmatism not trumping duty to respect official language rights — Appeal allowed. This was an appeal from a decision of the Tax Court of Canada (T.C.C.) allowing the respondent Kassem Mazraani’s appeal and determining that he occupied insurable employment within the meaning of paragraph 5(1) (

a) of the Employment Insurance Act while working with the appellant. In this appeal, the appellant submitted that there were multiple violations of the official language rights of witnesses and its counsel during the hearing before the T.C.C. Language issues arose when the respondent, the Minister of National Revenue; hereinafter the respondent, indicated that its first witness would be testifying in French and would thus need an interpreter. In response, the respondent Mr. Mazraani indicated that he would need an interpreter should the witness testify in French. Instead, the T.C.C.

Judge (Judge) accepted a “pragmatic” compromise whereby the witness would testify in English, but would express himself in French on technical issues. In several other instances, the Judge coaxed counsel and witnesses to use English in order to accommodate Mr. Mazraani’s limited understanding of French. Mr. Mazraani argued, inter alia , that no prejudice was suffered where an individual was capable of expressing him or herself in both official languages.

The main issue was whether the constitutional and quasi-constitutional official language rights of witnesses and counsel were violated in the course of the hearing before the T.C.C. Held , the appeal should be allowed. Upon being informed that one of the parties needed an interpreter, it was incumbent upon the Judge to adjourn the hearing in order to arrange for

interpretation services. In accepting a compromise, the Judge failed to uphold his positive duty to ensure that witnesses are heard in the official language of their choice. A person appearing before a federal court has the constitutional right to express him or herself in the official language of his or her choice regardless of whether he or she is bilingual. In other words, the fact of being bilingual does not extinguish one’s right to speak the official language of his or her choice. The efforts of the Judge to be “pragmatic” in finding ways around adjourning and securing

interpretation services resulted not only in the violation of the official language rights of counsel and witnesses, but also the violation of the respondent’s official language rights. It was not open to the Judge to seek a shortcut around the official language rights of all those involved in the proceedings. The violation of language rights at issue and the resulting delays could have been avoided by an adjournment to secure proper

interpretation services. Pragmatism does not trump the duty to respect the official language rights of all in the course of judicial proceedings. The matter was remitted to the T.C.C. for a new hearing before a different judge. STATUTES AND REGULATIONS CITED Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 16, 19. Constitution Act, 1867 , 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 133. Employment Insurance Act , S.C. 1996, c. 23, s. 5(1)(a). Official Languages Act , R.S.C., 1985 (4th Supp.), c. 31, ss. 14, 15 , 18 . Tax Court of Canada Act , R.S.C., 1985, c. T-2, s. 18.15(3).

CASES CITED APPLIED: R. v. Beaulac, (SCC), [1999] 1 S.C.R. 768, (1999), 173 D.L.R. (4th) 193. CONSIDERED: MacDonald v. City of Montreal, (SCC), [1986] 1 S.C.R. 460, (1986), 27 D.L.R. (4th) 321; Ford v. Quebec (AttorneyGeneral), (SCC), [1988] 2 S.C.R. 712, (1988), 54 D.L.R. (4th) 577. REFERRED TO: Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340; Chiasson v. Chiasson (1999), (NB CA), 222 N.B.R.(2d) 233, [1999] N.B.J. No. 621 (QL) (C.A.); NCJ Educational Services Limited v. Canada (National Revenue), 2009 FCA 131, 392N.R. 11.

APPEAL from a decision of the Tax Court of Canada (2016 TCC 65) allowing the respondent Kassem Mazraani’s appeal anddetermining that he occupied insurable employment within the meaning of paragraph 5(1)(

a) of the Employment Insurance Act whileworking with the appellant. Appeal allowed. APPEARANCES Nicolas Simard and Yves Turgeon for applicant. Kassem Mazraani on his own behalf. Simon Petit and Emmanuel Jilwan for respondent Minister of National Revenue. SOLICITORS OF RECORD Fasken Martineau DuMoulin LLP, Montréal, for appellant. Deputy Attorney General of Canada for respondent Minister of National Revenue. The following are the reasons for judgment rendered in English by Boivin J.A.: I.

Introduction [1] This is an appeal of a decision of Justice Archambault (the Judge) of the Tax Court of Canada (T.C.C.), cited as 2016 TCC 65. [2] On April 5, 2017, this Court rendered judgment from the bench with reasons to follow.

In so doing, this Court granted the appeal,quashed the judgment below, and sent the matter back to the T.C.C. for a new hearing before a different judge. [3] In this appeal, the appellant, Industrielle Alliance, Assurance et services financiers Inc. (Industrielle Alliance), essentiallysubmits that there were multiple violations of the official language rights of witnesses and its counsel during the hearing before theT.C.C. [4] Mr.

Mazraani, a self-represented respondent, submits that no such violations occurred, arguing that language is only a matter ofcommunication and that the documentary evidence spoke for itself. Moreover, Mr. Mazraani contends that (

i) the witnesses and counselwere all bilingual; (ii) all persons involved in the hearing before the T.C.C. consented to addressing the T.C.C. in English; and (iii)Industrielle Alliance raises language rights merely as a strategic move “to ambush the judgment of the TCC”. [5] The Minister of National Revenue (the Minister), also a respondent in this appeal, shares the position taken by IndustrielleAlliance and further contends that Mr. Mazraani’s official language rights were violated. II. Issues on Appeal [6] This appeal raises three questions: 1.

Were the constitutional and quasi-constitutional official language rights of witnesses and counsel violated in the course of thehearing before the T.C.C.? 2. Did the questions the Judge put to Industrielle Alliance’s witnesses give rise to a reasonable apprehension of bias? 3. Did the Judge err in determining that Mr. Mazraani occupied insurable employment while working for Industrielle Alliance? [7] Given this Court’s finding that the constitutional and quasi-constitutional official language rights of witnesses, counsel forIndustrielle Alliance, as well as Mr.

Mazraani’s rights were all violated in the course of the hearing before the T.C.C., it is unnecessaryto determine whether Mr. Mazraani has been engaged in insurable employment while working for Industrielle Alliance, or the reasonableapprehension of bias issues. However, I will provide an observation in connection with the latter issue. III. Official Language Rights before Proceedings in Federal Courts

[8] It is trite law that English and French are the official languages of Canada and have equality of status and equal rights andprivileges in courts established by Parliament, including the T.C.C. Hence, any person who appears before or submits written pleadingsto a federal court has the constitutional right to use the official language of his or her choice: see

section 133 of the Constitution Act,1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982, Item 1)[R.S.C., 1985, Appendix II, No. 5]. This constitutional right is also reflected and confirmed in sections 16 and 19 of the CanadianCharter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C.,1985, Appendix II, No. 44]. [9] The Supreme Court of Canada in MacDonald v.

City of Montreal, (SCC), [1986] 1 S.C.R. 460, at page 483,(1986), 27 D.L.R. (4th) 321 recalled that the constitutional right to use the official language of one’s choice in courts covered by section133 of the Constitution Act, 1867 applies broadly to “litigants, counsel, witnesses, judges and other judicial officers”. [10] Significantly, a person’s ability to express him or herself in both official languages does not impact such person’s constitutionalright to choose either French or English in the context of court proceedings.

One’s ability to speak both official languages is “irrelevant”.In the words of the Supreme Court of Canada in R. v. Beaulac, (SCC), [1999] 1 S.C.R. 768, (1999), 173 D.L.R. (4th)193 (Beaulac), at paragraph 45: In the present instance, much discussion was centered on the ability of the accused to express himself in English.

This ability is irrelevantbecause the choice of language is not meant to support the legal right to a fair trial, but to assist the accused in gaining equal access to apublic service that is responsive to his linguistic and cultural identity. [11] The Supreme Court of Canada further observed: … Language is so intimately related to the form and content of expression that there cannot be true freedom of expression by means oflanguage if one is prohibited from using the language of one’s choice. Language is not merely a means or medium of expression; itcolours the content and meaning of expression. It is, as the

preamble of the Charter of the French Language itself indicates, a means bywhich a people may express its cultural identity. [Emphasis added.] Ford v. Quebec (Attorney General), (SCC), [1988] 2 S.C.R. 712, (1988), 54 D.L.R. (4th) 577 at pages 748–749, cited inBeaulac, at paragraphs 17 and 34. [12] The Official Languages Act, R.S.C. 1985 (4th Supp.), c. 31 (OLA), which falls under the privileged category of quasi-constitutional legislation (Thibodeau v.

Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340, at paragraph 12) provides as follows at sections14 and 15: Official languages of federal courts 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 inany pleading in or process issuing from, any federal court. Hearing of witnesses in official language of choice 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 inthe 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 theother official language. Duty to provide simultaneous

interpretation

(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 oneofficial language into the other. [13] Subsection 15(1) of the OLA thus establishes, inter alia, a positive duty on federal courts to ensure that any person givingevidence before them may be heard, without disadvantage, in the official language of his or her choice. Subsection 15(2) of the OLAfurther establishes a similar duty on the federal courts to ensure that simultaneous

interpretation from one official language into the otheris made available for any proceeding before it where a party requests such services. In so doing, the OLA reflects that the “freedom tochoose [between French and English] is meaningless in the absence of a duty of the State to take positive steps to implement languageguarantees” (Beaulac, at paragraph 20). [14] Against this background, I now turn to the issues at bar. IV. Analysis [15] The present proceedings were triggered by a determination on the part of the Canada Revenue Agency that Mr. Mazraani did notoccupy insurable employment within the meaning of paragraph 5(1)(

a) of the Employment Insurance Act, S.C. 1996, c. 23. The Ministersubsequently confirmed this determination, which was challenged by Mr. Mazraani before the T.C.C. [16] The appeal before the T.C.C. was conducted pursuant to subsection 18.15(3) of the Tax Court of Canada Act, R.S.C., 1985, c. T-2, which directs the T.C.C. to conduct the appeal “as informally and expeditiously as the circumstances and considerations of fairnesspermit.” Mr. Mazraani, who was self-represented before the T.C.C., submitted his notice of appeal in English. The Minister, inaccordance with

section 18 of the OLA, submitted her reply in English. Industrielle Alliance, the employer and an intervenor before theT.C.C., submitted its notice of intervention in French. [17] Language issues arose on the second day of the hearing when counsel Turgeon for Industrielle Alliance indicated that his first

witness, being Mr. Michaud, would be testifying in French. In response, Mr. Mazraani clearly indicated that he would need an interpreter if Mr. Michaud was to testify in French (transcript, Vol. 1, at pages 269–270): JUSTICE ARCHAMBAULT: Fine. So let’s start with Mr. Michaud. It’s Michaud. It’s not Comeau. It’s Michaud. MR. TURGEON: Bruno Michaud. Monsieur Bruno Michaud. JUSTICE ARCHAMBAULT: O.K. So — MR. TURGEON: That will testify in French if you have no — JUSTICE ARCHAMBAULT: I don’t have any problem except that the party — you don’t understand French very well? MR. MAZRAANI: No. JUSTICE ARCHAMBAULT: So — MR.

TURGEON: And I hesitate to impose the witness — JUSTICE ARCHAMBAULT: Okay. Because — MR. TURGEON: Well, yeah, my colleague is referring to the Exhibit E-4 — A-4 that is — that he’s speaking French. MR. JILWAN: His job application. — (SHORT PAUSE) MR. TURGEON: And my client knows as a matter of fact that he’s speaking French. JUSTICE ARCHAMBAULT: He picked up the lowest — MR. TURGEON: Yeah. JUSTICE ARCHAMBAULT: — the lowest level of French. Are you uncomfortable with having this witness testify in French? MR. MAZRAANI: Of course. JUSTICE ARCHAMBAULT: Would you need — would you need an interpreter? MR.

MAZRAANI: Of course. JUSTICE ARCHAMBAULT: Of course what? MR. MAZRAANI: I need an interpreter. I can’t — JUSTICE ARCHAMBAULT: You need an interpreter. MR. MAZRAANI: — because this case is — MR. TURGEON: Okay. Let me — JUSTICE ARCHAMBAULT: Because I have to — you know, I have to be fair to both parties. You know, I’m prepared to let him speak in French but then I would have to arrange for an interpreter for him . [Emphasis added.] [ 18 ] Upon being informed by counsel Turgeon that the witness Mr. Michaud wanted to testify in French and that one of the parties, being Mr.

Mazraani, needed an interpreter, it was incumbent upon the Judge to adjourn the hearing in order to arrange for

interpretation services. It was his duty to respect Mr. Michaud’s choice to testify in French and Mr. Mazraani’s request for an interpreter ( OLA, subsections 15(1) , (2) ). [ 19 ] Instead, the Judge granted a break for counsel Turgeon to devise a compromise. Counsel Turgeon proposed that Mr. Michaud testify in English but that he be permitted to express himself in French on technical issues, which could then be translated into English. The Judge accepted this “pragmatic” compromise.

In doing so, the Judge failed to uphold his positive duty to ensure that witnesses are heard in the official language of their choice. [ 20 ] Another violation of official language rights resulted from the Judge’s treatment of another witness, Mr. Charbonneau, who had likewise expressed the desire to speak in French. Once counsel Turgeon began examining Mr. Charbonneau in French, the Judge interrupted the witness examination to request that it be conducted in English. Mr. Charbonneau replied by asking if he could respond in French.

Rather than accede to this request, as required by subsection 15(1) of the OLA , the Judge focused on Mr. Mazraani’s inability to understand French (transcript, Vol. 2, at pages 608–609): [translation] MR. TURGEON: MR. Charbonneau, can you tell us, since when are you connected to Industrielle Alliance…

JUSTICE ARCHAMBAULT: Is it possible to — to do it in English? MR. TURGEON: Oh, oh yeah, I’m sorry, I’m not sure — JUSTICE ARCHAMBAULT: Can you speak? MR. CHARBONNEAU: Can I just say something? JUSTICE ARCHAMBAULT: Yes. MR. CHARBONNEAU: Yes, as a matter of fact, I am better in French … JUSTICE ARCHAMBAULT: Yes. MR. CHARBONNEAU: … and I am a little surprised because at work our meetings are, everything is done in French. JUSTICE ARCHAMBAULT: M’hm. MR. CHARBONNEAU: Can I answer in French? JUSTICE ARCHAMBAULT: But the taxpayer … the person before us today [Mr.

Mazraani] whose case … whose case is the subject ofthis appeal … MR. CHARBONNEAU: Yes. JUSTICE ARCHAMBAULT: … tells us that he has a hard time understanding French. So we are asking as much as possible to thewitnesses to speak English. Are you relatively comfortable speaking English? MR. CHARBONNEAU: Well I’ll try … [Emphasis added.] [21] During the course of the proceedings before the T.C.C., counsel Turgeon and other witnesses were treated similarly and weredenied their right to choose to speak in French because of their English language skills (see for example: transcript, Vol. 2, at page 555(Ms.

Lambert) and transcript, Vol. 4, at pages 1256, 1336–1337 (counsel Turgeon)). In turn, each request to speak in the officiallanguage of their choice was treated by the Judge as a request for accommodation, as opposed to the exercise of protected officiallanguage rights. [22] In each instance, the Judge coaxed counsel and the witnesses to use English. In conducting the proceedings, the Judge favouredEnglish over French in order to accommodate Mr. Mazraani’s limited understanding of French. This resulted in a violation of counselTurgeon and the witnesses’ official language rights.

The Judge exerted subtle pressure on counsel Turgeon and the witnesses to foregotheir right to speak in the official language of their choice, in this case French (Chiasson v. Chiasson (1999), (NBCA), 222 N.B.R. (2d) 233, [1999] N.B.J. No. 621 (QL) (C.A.)). Mr. Mazraani contends that the witnesses and counsel Turgeon freelyconsented to speak in English and that Industrielle Alliance’s reliance on language rights is merely strategic. The transcript of theproceedings simply does not support such a conclusion. [23] Mr.

Mazraani also argues that no prejudice is suffered where an individual is capable of expressing him or herself in both officiallanguages. This argument is ill-founded. A person appearing before a federal court has the constitutional right to express him or herselfin the official language of his or her choice regardless of whether he or she is bilingual.

In other words, the fact of being bilingual doesnot extinguish one’s right to speak the official language of his or her choice: Beaulac, at paragraph 45. [24] Moreover, despite the efforts of the Judge to have the witnesses testify in English, a significant portion of the testimony was inFrench due to the difficulty some witnesses had expressing themselves in English. Of particular note is the testimony of Éric Leclerc,whose testimony had significant French portions (see for example: transcript, Vol. 4, at pages 1206–1207, 1222, 1228, 1266, 1323–1324and 1332).

Although the Judge translated some of the witnesses’ French testimony into English for Mr. Mazraani, many exchanges wereleft untranslated. At times, Mr. Mazraani expressed his inability to understand what was happening, saying “I have to understand”(transcript, Vol. 4, at pages 1249 and 1320). Given Mr. Mazraani’s earlier request for

interpretation services should there be testimony inFrench, it follows that the fact that witnesses and counsel Turgeon addressed the Judge in French with little to no translation constituted aviolation of Mr. Mazraani’s official language rights (Minister’s memorandum of fact and law, at paragraph 59). [25] At the hearing before this Court, Mr. Mazraani alleged that counsel Turgeon directed witnesses to speak in French in order toprevent him from understanding their testimony. While I make no determination on this point, I note that the issue would not have arisenhad the Judge adjourned for the purpose of securing

interpretation services. [26] In the end, the efforts of the Judge to be “pragmatic” in finding ways around adjourning and securing

interpretation servicesresulted not only in the violation of the official language rights of counsel Turgeon and witnesses, but also the violation ofMr. Mazraani’s official language rights. It simply was not open to the Judge to seek a shortcut around the official language rights of allthose involved in the proceedings. The Judge’s failure to exercise his duty to ensure that the official language rights at issue wereprotected not only resulted in their violation, but further resulted in delays that could have otherwise been avoided by an adjournment tosecure proper

interpretation services. Pragmatism does not trump the duty to respect the official language rights of all in the course ofjudicial proceedings. [27] Finally, Industrielle Alliance submits that the Judge’s interventions and questions to its witnesses gave rise to a reasonableapprehension of bias. Suffice it to say that the number of interruptions and questions the Judge put to the witnesses appears to beexcessive, even in the context of a party being self-represented and the proceedings being conducted informally: see NCJ EducationalServices Limited v. Canada (National Revenue), 2009 FCA 131, 392 N.R. 11. For instance, Industrielle Alliance contends that the Judge

put no less than 102 questions to the witness Mr. Michaud (Industrielle Alliance’s memorandum of fact and law, at paragraph 50). But given my finding on the issue of official language rights, I make no determination in this regard. [ 28 ] Likewise, it is unnecessary to consider the employment issue. V. Conclusion [ 29 ] I would therefore allow the appeal, quash the judgment below and remit the matter to the Tax Court of Canada for a new hearing before a different judge.

It goes without saying that the transcript of the first trial shall not be relied upon either by the parties or the judge hearing the second trial. As the parties did not seek costs, none should be awarded. Gauthier J.A.: I agree . de Montigny J.A.: I agree .