Sarb Sandhu Appellant (Petitioner) v. Provincial Court Judge Jane McKinnon, 2013 BCCA 88

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Sandhu v. British Columbia (Provincial Court), 2013 BCCA 88 Date: 20130227 Docket: CA040098 Between: Sarb Sandhu Appellant (Petitioner) And Provincial Court Judge Jane McKinnon Respondent (Respondent) Before: The Honourable Mr. Justice Tysoe The Honourable Madam Justice Neilson The Honourable Madam Justice Bennett On appeal from: Supreme Court of British Columbia, July 17, 2012 ( Sandhu v. British Columbia (Provincial Court) , 2012 BCSC 1064 , Vancouver Docket S113856) Counsel for the Appellant: R.R. Hira, Q.C. and S.M.R. Conroy Counsel for the Respondent: A.M.

Gunn, Jr., Q.C. Place and Date of Hearing: Vancouver, British Columbia January 25, 2013 Place and Date of Judgment: Vancouver, British Columbia February 27, 2013 Written Reasons by: The Honourable Mr. Justice Tysoe Concurred in by: The Honourable Madam Justice Neilson The Honourable Madam Justice Bennett Reasons for Judgment of the Honourable Mr. Justice Tysoe: Introduction [ 1 ] The appellant, Sarb Sandhu, was hired by a claimant in a small claims action to act as an interpreter for the claimant and other witnesses at the trial of the claim.

The respondent, the Provincial Court judge assigned to preside over the trial, refused to let the appellant act as an interpreter in the trial on the basis that she was told the appellant’s name was not on a list of interpreters which she incorrectly referred to as a list of court-certified interpreters. [ 2 ] The appellant applied to the Supreme Court for judicial review of the respondent’s decision that he could not act as an interpreter in the trial. The chambers judge hearing the petition held the decision was one capable of being judicially reviewed, but she concluded Mr.

Sandhu did not have standing to challenge the decision. She also concluded that the decision complied with the standard of review of reasonableness, that the respondent had not fettered her discretion or breached a duty of fairness, and that there was no reasonable apprehension of bias on the part of the respondent. [ 3 ] The appellant appeals to this Court, asserting the chambers judge erred in each of her conclusions.

The respondent says her decision was not one that could be judicially reviewed and further maintains the matter is now moot because the small claims action went to trial and a judgment was rendered incorporating a settlement reached by the parties.

[4] For the reasons that follow, I would dismiss the appeal on the basis that the appellant lacks standing to have the respondent’sdecision judicially reviewed. In view of this conclusion, it will not be necessary to deal with other errors alleged by the appellant. Asthreshold issues, I will deal with arguments of the respondent regarding the applicability of judicial review and mootness. I will alsodeal with applications of both parties to adduce evidence on the appeal.

Background [5] Before I summarize the events giving rise to the application for judicial review, I will review the affidavit evidence regardingthe list of interpreters used in court registries and the background of the appellant. This information is contained in the appellant’saffidavit and an affidavit of a representative of the Court Services Branch of the Ministry of Attorney General (“Court Services”). [6] Court Services is responsible for paying for the costs of

interpretation services in criminal proceedings, family law proceedingsin Provincial Court, traffic court cases, and municipal bylaw cases. It has entered into agreements with interpreters it is satisfied arequalified to provide these services. Most of these interpreters are accredited by a recognized institution such as the VancouverCommunity College or the Society of Translators and Interpreters of British Columbia.

Some of the interpreters are not accreditedbecause there is no testing available for the language they interpret. [7] The interpreters with whom Court Services has entered into agreements are included on a list of interpreters circulated to allcourt registries.

A person may be removed from the list by Court Services if he or she is convicted of a criminal offence, has beenproved to be incompetent or untrustworthy, or has failed to appear in court on time on a regular basis. [8] The reason why the respondent incorrectly referred to this list as a list of court-certified interpreters appears to be the use ofthat term in the Provincial Court Small Claims Handbook published by The Continuing Legal Education Society of British Columbia.

The Handbook states that parties must arrange for court-certified interpreters if a witness is not fluent in English and that the courtregistry maintains a list of court-certified interpreters. [9] The appellant is fluent in English, Punjabi and Hindi, and makes his living interpreting and translating these languages. He hasworked as an interpreter in the Provincial and Supreme Courts of British Columbia since 1982, and he was certified by the Society ofTranslators and Interpreters of British Columbia as a court interpreter for the Punjabi and English languages in 1993.

He has also actedas an interpreter before administrative tribunals, in arbitration proceedings and at examinations for discoveries. He estimates that he hasinterpreted in thousands of proceedings. [10] The appellant did have a contract with Court Services and was on the list of interpreters maintained by Court Services. He hadbeen removed from the list at some point prior to the small claims trial in question. There was no evidence before the Supreme Courtexplaining the reason why the appellant was no longer on the list. [11] As Court Services is not responsible to pay the costs of

interpretation services in small claims actions, it is necessary for theparties to make arrangements for any interpreters that are required for a small claims trial. The appellant was hired by Gurdev Nahal toact as a Punjabi interpreter in the trial of his small claims action against a homeowner who had refused to pay for carpentry work doneby Mr. Nahal and his crew. The trial was called by the court clerk at approximately 9:40 a.m. on May 16, 2011 to be heard by therespondent as the presiding judge.

Almost immediately after court was in session, the respondent stood court down to speak with thecourt clerk outside the courtroom. [12] Court remained stood down for approximately 45 minutes. When court resumed, the respondent addressed the appellant andexplained that court had been stood down so that she could check with the court registry to determine whether he was on the list of court-certified interpreters. She stated that the appellant was not on the list as a court-certified interpreter and that he could not act as aninterpreter in the matter.

The respondent then stood the trial down until 1:30 p.m. so that the appellant could straighten it out if therewas an error in the list or, if necessary, so that Mr. Nahal could get an interpreter who was on the list. [13] When the trial was recalled in the afternoon, the appellant was accompanied by counsel, Mr. Hira, who stated that he hadlistened to the audio recording of the morning’s proceedings and wanted to lead the respondent through the misconception that arosefrom the recording.

He explained there was no court-certified list of interpreters but there was a list of people who were on contract withthe Attorney General to provide

interpretation services in criminal courts. He stated that the appellant had been on that list for some timebut, as the result of a dispute with the Attorney General, he was not currently on the list. [14] As Mr. Hira was about to offer the qualifications of the appellant, the respondent stated that she was not receiving it and that theappellant had no standing. Mr. Hira provided the respondent with copies of the decisions in R. v. Tran, (SCC), [1994] 2S.C.R. 951, 92 C.C.C. (3d) 218, and R. v.

Rybak, 2008 ONCA 354, 233 C.C.C. (3d) 58, and submitted that the court was supposed toconduct a voir dire on the issue of competency of an interpreter. The respondent replied that she could not rule on somebody’scompetency as an interpreter in that way and that she would not be conducting a voir dire. [15] The discussion between Mr. Hira and the respondent continued for a few more minutes.

At one point, the respondent stated thatshe had had the benefit of having the appellant interpret on other matters and she had no difficulty with him and the quality of his work. [16] After court was stood down in an unsuccessful attempt to have the court manager show Mr. Hira a copy of the list ofinterpreters (the court manager was at lunch), the respondent addressed Mr. Nahal. She gave him a choice of waiting for the appellant tobring a prerogative writ or to proceed with the trial on the following morning with a court-certified interpreter other than the appellant. Mr.

Nahal stated that he was willing to proceed with the appellant, and the respondent adjourned the trial generally. Applications to Adduce Evidence

[17] Each party has applied to adduce “fresh” evidence. In the case of the appellant, the tendered evidence is new evidence, notfresh evidence, because none of it existed at the time of the judicial review hearing before the chambers judge (see Jens v. Jens, 2008BCCA 392, 300 D.L.R. (4th) 136 at paras. 23-30, for a discussion of the difference between new evidence and fresh evidence).

Theevidence tendered by the respondent consists partly of fresh evidence and partly of new evidence. [18] The new evidence tendered by the appellant is an affidavit appending correspondence between his counsel and Court Servicesin which Court Services states that it does not require any additional Punjabi court interpreters and that the contract the appellant hadwith Court Services, which did not contain a right of renewal clause, had expired in March 2010. [19] The evidence tendered by the respondent is an affidavit appending four exhibits.

Exhibit “A”, consisting of two documentswhich pre-date the hearing before the chambers judge, generated at a settlement conference that took place prior to the events of May 16,2011, shows no indication that an interpreter would be required at the small claims trial. Exhibit “B” concerns an order for adjournmentdated June 6, 2011. [20] The other two documents, Exhibits “C” and “D”, are a transcript and a trial record dated April 26, 2012. They disclose that thetrial in Mr. Nahal’s small claims action went forward on April 26, 2012.

The appellant appeared but the Provincial Court judge (not therespondent) advised him that he would not accept him as an interpreter in the trial in view of the pending judicial review proceedings(the hearing of the judicial review petition had taken place and the judgment of the chambers judge was under reserve). The trialcommenced with other interpreters. The claim was settled during a brief adjournment of the proceedings, and an order was made thatthe defendant pay $5,500 to Mr.

Nahal. [21] In my opinion, it is not necessary for the respondent to meet the test for new evidence in order to have the last two documentsadmitted: see Harrison Hot Springs (Village) v. Kamenka (c.o.b. World Endurance Sport), 2004 BCCA 347, 243 D.L.R. (4th) 141 atpara. 12, and Buencamino v. Noftsinger, 2012 BCCA 421 at para. 5. They are being tendered to demonstrate that the issue under appealis now moot.

They are not being proffered in order to affect the merits of the decision of the chambers judge. [22] I would not admit the balance of the tendered evidence because it is unlikely to have affected the result reached by the chambersjudge. It merely supplements the record in a limited way. Mootness [23] The leading authority on mootness is Borowski v. Canada (Attorney General), (SCC), [1989] 1 S.C.R. 342, 57D.L.R. (4th) 231. It confirms that, generally speaking, courts will not decide cases that raise hypothetical or abstract questions.

Thecourt should first determine whether there is a present live controversy affecting the rights of the parties. If not, the court shouldconsider whether to exercise its discretion to nevertheless decide the issues that gave rise to the litigation. [24] Some of the relief sought by the appellant has become moot. Two of the items of requested relief pertain to Mr. Nahal’s smallclaims action (an order quashing the order made by the respondent and a declaration that the appellant was qualified to be an interpreterin the small claims trial).

That action has now come to an end. [25] The appellant also seeks five items of relief of a general nature. It is questionable whether the court would grant any of thisrelief. The decision under judicial review was the ruling of the respondent that the appellant could not act as an interpreter in Mr.Nahal’s small claims trial. She did not make a ruling of a general nature.

I need not determine whether any of the relief of a generalnature is available to the appellant because, even if the entire proceeding has become moot, I would exercise the court’s discretion todecide the issues in any event. [26] In Borowski, the Supreme Court of Canada stated that the circumstances in which the court should exercise its discretion to hearmoot cases include when they “are of a recurring nature but brief duration” and “the circumstances suggest that the dispute will havealways disappeared before it is ultimately resolved” (pp. 360-361). Although Mr.

Nahal said he wanted to use the appellant as aninterpreter in his small claims trial, he did not wait for the judicial review proceeding to be concluded before continuing with his trial. Inmy view, it is very unlikely that a litigant would want, or would be allowed, to defer small claims litigation until the point in issuereached this Court. It is an appropriate case for this Court to expend the judicial resources to determine a moot issue.

Applicability of Judicial Review [27] The respondent challenges the holding of the chambers judge that the ruling made by the respondent may be reviewed pursuantto the meaning of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241. [28] The Act defines an “application for judicial review” as “an application under

section 2”, which reads as follows: 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 ofthe 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 statutorypower. [29] The term “statutory power of decision” is defined in the Act as follows:

“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 toit, and includes the powers of the Provincial Court; [Underlining added.] [30]

Section 5 of the Small Claims Act, R.S.B.C. 1996, c. 430, only permits appeals from orders made by a Provincial Court judge ina small claims action if the order is made after a trial of the action. There are numerous decisions where pre-trial decisions made by aProvincial Court judge have been judicially reviewed (two examples heard by this Court are Shaughnessy v. Roth, 2006 BCCA 547, 61B.C.L.R. (4th) 268, which involved an order transferring an action from the Provincial Court to the Supreme Court, and Hubbard (c.o.b.Angela Hubbard Photography) v.

Acheson, 2009 BCCA 251, 93 B.C.L.R. (4th) 315, which involved an order dismissing an applicationto set aside a default judgment). [31] In the present case, the respondent argues she was simply controlling the processes of the court and was not exercising astatutory power of decision. However, s. 2(2) of the Small Claims Act gives the Provincial Court the power to “make any order or giveany direction it thinks necessary to achieve the purpose of this Act and the rules”.

Subsection 2(1) states the purpose of the Act and therules “is to allow people to bring claims to the Provincial Court to have them resolved ... in a just, speedy, inexpensive and simplemanner”. In my opinion, the respondent was exercising a statutory power of the Provincial Court. [32] The respondent also argues that relief in the nature of mandamus or certiorari is available only under clause (

a) of s. 2(2) of theJudicial Review Procedure Act and that prerogative writs are not available to interfere with a trial judge’s administration of theproceedings before her. However, this argument overlooks the fact that, in addition to seeking prerogative writs, the appellant is seekinga declaration, which is relief falling under clause (

b) of s. 2(2). [33] I am not persuaded that the chambers judge erred in holding that the respondent’s decision was a matter that could be subjectedto judicial review. Standing [34] The chambers judge held that, while Mr. Nahal, as a party to the small claims action, may have had standing to seek judicialreview of the respondent’s decision, the appellant did not have standing. In making this holding, the judge accepted the respondent’sanalogy to an expert witness who is disqualified from giving evidence. She also considered the factors set out in Baker v.

Canada(Minister of Citizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, and concluded that the respondent did not owea duty of fairness to the appellant. The appellant says the chambers judge erred in both respects. [35] The approach to be taken with respect to the issue of standing on a judicial review proceeding was set out in Inland RevenueCommissioners v.

National Federation of Self-Employed and Small Businesses Ltd., [1981] 2 All E.R. 93 at 108 (H.L.): 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 itgives any express or implied right to persons in the position of the applicant to complain of the alleged unlawful act or omission. This passage was quoted with approval by this Court in Saanich Inlet Preservation Society v.

Cowichan Valley Regional District (1983), (BC CA), 147 D.L.R. (3d) 174, 44 B.C.L.R. 121 at 127-128 (C.A.). [36] Although the chambers judge did not expressly conclude that the Small Claims Act did not give any express or implied right tointerpreters to complain about the respondent’s decision, she was referred to the above passage and she recited the respondent’sargument to that effect. There is certainly nothing express in the Small Claims Act that would give the appellant the right to complainabout the respondent’s decision. Nor, in my view, is such a right given implicitly.

The purpose of the Small Claims Act, as set out in s.2(1), is the resolution of claims within the monetary limit set by the Act in a just, speedy, inexpensive, and simple manner.

There is animplied right that the litigants can complain about decisions made in small claims actions that cannot be appealed, but the purpose of theAct would not be furthered by implying such a right in favour of non-parties such as the appellant. [37] As the Small Claims Act does not give any express or implied right to non-parties such as the appellant to complain aboutdecisions made in small claims actions, I conclude that the appellant does not have standing to seek judicial review of the respondent’sdecision. [38] The appellant points to the discussion in Brown and Evans, Judicial Review of Administrative Action in Canada (Toronto:Canvasback Publishing, 2010) at 4:3420 with respect to the issue of standing in judicial review proceedings: At common law a person will have standing to seek a remedy in proceedings for judicial review if he or she is an “aggrievedperson,” an “affected person,” or someone who is “exceptionally prejudiced” by the impugned administrative action. [Footnotes omitted.] The appellant argues he was exceptionally prejudiced by the respondent’s decision, “as it affected his ability to earn a livelihood andcould have significant and permanent consequences on his professional career as a court interpreter”. [39] There is no evidence to support the claim that the appellant has been exceptionally prejudiced by the decision.

All that is

contained in his affidavit is a bald assertion that the “conduct of the Respondent on May 16, 2011, if left uncorrected, will affect my ability to continue as an interpreter and translator”. There is no evidence that the appellant has not been able to act as an interpreter in any other small claims trial or in any other court, nor before any administrative tribunals or at any examinations for discovery.

The appellant has undoubtedly been affected by the decision of Court Services not to enter into a new contract with him when the term of his previous contract expired, but that decision is not the subject of this judicial review proceeding. [ 40 ] In my opinion, the appellant’s reliance on Baker to establish standing is misguided. Baker deals with the factors to be taken into account when determining the content of a duty of fairness. It was accepted in Baker that the person seeking judicial review had standing and was owed a duty of fairness.

The issues of whether the person is owed a duty of fairness and whether the duty has been breached are questions to be considered as part of the judicial review. They do not give standing to an applicant who does not otherwise have standing. The appellant has cited no authority for the proposition that an assertion a person is owed a duty of fairness gives standing to that person to have the decision in question judicially reviewed. [ 41 ] I conclude that the chambers judge was correct in her determination that the appellant does not have standing to judicially review the respondent’s decision.

Conclusion [ 42 ] It is for the above reasons that I would dismiss the appeal. The respondent does not seek costs, and I would order that each party bear their own costs of the appeal. “The Honourable Mr. Justice Tysoe” I agree: “The Honourable Madam Justice Neilson” I agree: “The Honourable Madam Justice Bennett”