The plaintiff had elected to have certain mortgage proceedings go ahead as bilingual. Although not very clear from the decision it seems as if the plaintiff, who was self representing, was difficult and had caused bilingual judges to recuse themselves because of complaints made by the plaintiff against them.
The defendants brought a motion for summary judgment. No bilingual judge was available to hear the matter but the motions judge held that the plaintiff's conduct was motivated by an intention to delay and judgment was granted.
The Court of Appeal reversed, refusing to consider the merits of the decision below. In short, the Court said a Court cannot dispense with a bilingual hearing even if a party behaved badly because the right being protected did not belong to the party but rather to the linguistic community.
The more critical parts of the decision follow:
(ii) Did the judge have the jurisdiction to deny the right to a bilingual proceeding?
[16] The right to a bilingual proceeding is conferred by s. 126 of the Courts of Justice Act which reads, in part, as follows:
126. (1) A party to a proceeding who speaks French has the right to require that it be conducted as a bilingual proceeding.
(2) The following rules apply to a proceeding that is conducted as a bilingual proceeding:
1. The hearings that the party specifies shall be presided over by a judge or officer who speaks English and French.
[17] Despite this provision, the respondents maintain that no right is absolute and that where there has been an abuse of process, the court may deny the right to bilingual proceedings.
[18] However, the right in s. 126 is not qualified by any grant of judicial discretion. Although it is true that the court has the inherent jurisdiction to control the conduct of the proceedings, it is also clear that the court's jurisdiction cannot be exercised in a manner that would conflict with the express provisions of a statute.
[19] What's more, a court has other means at its disposal to address a litigant's abuse of process. For example, the court may deny the litigant's application for an adjournment, stay the proceedings, or find the abuse to constitute a contempt of court. Moreover, the court may also prohibit a vexatious litigant from continuing the proceedings or initiating others. These provisions (and others) enable the court to control its process and to prevent abuse without violating the litigant's statutory right to a bilingual proceeding.
[20] In light of the foregoing, in my view, the motion judge should have adjourned the motions to a date when a bilingual judge was available.
b) If an error was made, should the Court of Appeal make the decision that the motion judge should have made?
[21] The respondents submit that even if the appellant's right to a bilingual hearing was violated, this court should nevertheless dismiss the appeal since it is clear that the underlying claim is without merit. I disagree and would not consider the merits of the underlying claim.
[22] The right to a bilingual hearing is a particular kind of right. It is not a procedural right put into place to ensure respect for the principles of fundamental justice or the right to a fair trial. As indicated by the Supreme Court of Canada in R. v. Beaulac, [1999] 1 S.C.R. 768, at para. 41:Language rights have a totally distinct origin and role [when compared with the right to a fair trial]. They are meant to protect official language minorities in this country and to insure the equality of status of French and English.
[23] In Ndem v. Greenspoon [2004] O.J. No. 3269 ( C.A. ), at para. 15, this court stated:
Where, as in this case, the appellant has met the procedural requirements to trigger a right to a bilingual hearing, this right is more than purely procedural, it is substantive and the appropriate remedy is to set aside the order.
[24] Therefore, in my view, the appropriate disposition is to set aside the order and to refer the matter back to the court below. English and French are the official languages of the courts in Ontario, and the court has a responsibility to ensure compliance with language rights under s. 126 of the Courts of Justice Act. A proper interpretation of this provision is one that is consistent with the preservation and development of official language communities in Canada and with the respect and preservation of their cultures: see Beaulac, at paras. 25, 34 and 45. Violation of these rights, which are quasi-constitutional in nature, constitutes material prejudice to the linguistic minority. A court would be undermining the importance of these rights if, in circumstances where the decision rendered on the merits was correct, the breach of the right to a bilingual proceeding was tolerated and the breach was not remedied.
James Morton
1100 - 5255 Yonge Street
Toronto, Ontario
M2N 6P4
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