Pleading the Blues in Franglais, before Ontario Courts

It took a week, but the court finally accepted their own prescribed form.

Last week, I launched a motion on behalf of a francophone client. The bilingual registrar at the court house refused to accept the Notice of Motion because it did not employ a literal translation of the English text of the rule and court form. When my court clerk relayed my advice that the Notice employed the French version of the Ontario Rules of Civil Procedure, as well as the corresponding court form, the registrar still rejected it.

Only after arming the clerk with the form from the Attorney General’s own website, and an English copy of the provision in s. 65 of the Legislation Act granting equal status to the French text, as well as my advice that we were prepared to obtain a judicial order requiring it to be filed, did the court accept the document. (Even then, there was a delay because the Toronto office of the Superior Court’s lone bilingual registrar was not on duty until the afternoon.)

The Client’s Rights

It was no tactical ploy on my part.  The client, domiciled in Québec, hired me to plead this commercial litigation case in French.  Almost all of the documents are in French, and many of a highly technical nature.  A judge relying on a court translator or Google to figure out a key element of the case could result in an error resulting in a miscarriage of justice or an order for rehearing, as the Ontario Court of Appeal found in the 2008 decision in Belende v. Patel.*

Further, pursuant to Commentary 4.2 of rule 2.1-1 of the Law Society’s Rules of Professional Conduct, Ontario lawyers have a duty to advise Franchophone clients of their right to be represented in French.

The above story illustrates the frustrations suffered by Francophone litigants every day in Ontario, an officially bilingual province in a country with entrenched constitutional language rights.

Interestingly, I have heard about this problem on many occasions, but only in gatherings of Francophone lawyers where French language advocates and government watchdogs preach to conclaves of the converted.  I have never heard the story told outside that context.

One Bilingual Clerk at the Court House

The first frustration of course, often cited by advocates of French-language rights, is the stark reality that the court had only one registrar capable of reading documents in both of the province’s official languages.  This fact is more frustrating because, in instances of doubt, the single employee could not confer with a colleague.

Inequality of Languages and Access to Justice

The second, more serious frustration, is the persistence of an institutional belief that the English text of a law trumps the French.  Despite the influence of ‘franglais’ in the Ontario French Common Law lexicon, distinct from the legal French of Québec and oddly more similar to that of France, there are limits to which the French language will withstand clumsy translation by literal equivalency.  There are native expressions in French for juridical concepts that should be used instead of translating a text word for word from the English.  In this instance, the English “hearing in writing” used to describe the nature of the hearing in fact less accurately described a rule 37.12.1 motion than the French “audience sur pièces.”

The actual incident, as a matter of perspective, was trivial although the court’s failing ended up costing my client for sending a clerk back to the court house several times instead of just the once.  As a matter of access to justice, however, the incident was illustrative of the experiences Ontario citizens in every aspect of public life, of which most Anglophones involved in public policy have little awareness.
UPDATE: This motion, having had an inauspicious start with a quibble over language, eventually went before a bilingual master who gave directions in English for an oral hearing.  Hearing dates were lost in three successive occasions, first because the court clerks did not recognize the disposition as requiring a continuation, second because the clerks did not recognize the French notice of return of motion for what it was when it was filed, and third because one bilingual master recused herself and the only other one was not sitting on the appointed day.

*The leading Ontario decision on this point, in which I appeared as counsel for the respondent, pleading limits to the language right.

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