Law Times

www.lawtimesnews.com Page 4 march 17/24, 2008 / Law Times NEWS Case spotlights need for more bilingual judges Violating language rights a 'material prejudice to the linguistic minority': appeal court T he Ontario Court of Ap- peal has found a French- speaking man's "quasi- constitutional" right to have a bilingual proceeding was denied by a Superior Court judge, and has overturned the lower court's dismissal of his case. "English and French are the official languages of the courts in Ontario, and the court has a responsibility to ensure compli- ance with language rights under s. 126 of the Courts of Justice Act," wrote Justice Paul Rou- leau for the appeal court panel that also included justices Karen Weiler and Robert Blair. "Violation of these rights, which are quasi-constitutional in nature, constitutes material prejudice to the linguistic mi- nority. A court would be under- mining 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 proceed- ing was tolerated and the breach was not remedied." The case of Ndem Belende v. Babubhai Patel, Canadian Busi- ness Investor Corp., Farzana Nabi- zada, and Seena Nasrati involved Belende's motion to rescind the 2006 sale of his property by Patel, a mortgage creditor who sold the property to Nabizada and Nasrati through power of sale. Belende also sought $1.5 million in general damages. The case was dismissed on March 22, 2007, when a sum- mary judgment was granted to Nabizada and Nasrati. Patel and Canadian Business Investor Corp. did not take part in that motion, and the case involving them continues. Two motions in Belende's case, which was a bilingual proceed- ing, were set for Jan. 11, 2007. But when no bilingual judge was available to hear the motions, Belende's agent asked for the matters to be adjourned until a date when one was available. The judge denied the request for adjournment and heard the motions, which included a re- quest to dismiss the claim. The judge believed that Belende was "attempting to manipulate the bilingual obligation of provin- cial laws to his own purpose," according to Rouleau's decision. The judge said Belende's ac- tions led to the unavailability of a bilingual judge, and that he had objected to 16 different judges based on competence in French. The judge said the only bilingual judges available to hear the motions refused due to past complaints about them from Belende. To get Belende's side of the case, the judge relied on help from the plaintiffs' lawyer and a translation of Belende's written submissions, according to Rou- leau. A courtroom interpreter also was available for Belende. After hearing the motions, the judge dismissed the case and a cross-motion by Belende was not heard, wrote Rouleau. At the appeal court, Belende argued that his "fundamental right" to a bilingual judge had been violated. The defendants' counsel, Lee Akazaki, argued that the appeal should be dis- missed for a num- ber of reasons: the motion judge was right to refuse the adjournment, because Belende abused the process and thereby pre- vented a bilingual judge from hear- ing the motions, warranting a de- nial of his right to a bilingual judge; and, otherwise, the appeal should be dismissed because Belende didn't suf- fer any prejudice, according to the ruling. The appeal court found that Belende's complaints about the language skills of judges in the To- ronto region doesn't mean that those judges can't hear a case involving him, noting the motion judge proceed- ed to hear the motions despite Belende's complaints. The court also found that a judge facing such an allegation of bias "should receive supporting evidence and then decide, on a case-by-case ba- sis, whether to recuse himself or herself." Rouleau also said the court had ways to deal with any abuse of process concerns other than by denying the right to a bilin- gual proceeding: "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." The appeal court also distin- guished the right to a bilingual hearing. "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," wrote Rouleau, adding that the rights also aim to protect official language minorities, as noted in the 1999 Supreme Court of Canada case R. v. Beaulac. However, the judgment not- ed Belende's actions in the case. "To a certain extent, it would appear that he is responsible for some of the difficulties which arose in this case," wrote Roule- au. "[T]he appellant should ap- preciate that the judges targeted by his criticisms will inevitably be hearing the various motions and proceedings in which he is involved." In his decision, Rouleau also noted that Coulter Osborne's Civil Jus- tice Reform Project report pointed to a need for more bi- lingual judges, par- ticularly in Toron- to. Osborne urged that future court appointments keep this need in mind. Rouleau said, "It is somewhat trou- bling that although the motions below were brought as part of a bilingual proceeding with sufficient notice, no bilingual judge was available to hear them." There are cur- rently four bi- lingual judges in Toronto for the Court of Appeal, five in the Superior Court, five in the Ontario Court of Justice, and four justices of the peace who speak both official languages. Justice Andra Pollak is the most recent bilingual judge appointed in the Toronto region, named to the Superior Court on Feb. 20. Ontario Ministry of the At- torney General spokesman Brendan Crawley says the min- istry has raised the issue of the need for more bilingual judges with the federal government. Sonia Ouellet, executive di- rector of the Association des ju- ristes d'expression française de l'Ontario, says there is a need for more bilingual judges through- out Ontario. She says it's vital for people to communicate in their first language on important legal matters. "As soon as it becomes emo- tional and there are serious alle- gations or consequences to this court proceeding, an individual will feel more comfortable in their own language," says Ouel- let. 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Correction The photograph of Joseph Di Luca, which ran on page 10 of the March 10 issue of Law Times was incorrectly placed with a story on the Safe Third Country Agreement with which Mr. Di Luca is unrelated. Law Times apologizes for the error. BY ROBERT TODD Law Times English and French are the official languages of the courts in this province and the Ontario Court of Appeal has ruled they must ensure compliance with language rights. LT

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