English vs French – Linguistic favoritism by Tax Court Judge : decision quashed by the FCA

 Fasken Martineau Tax bulletin

In Industrielle Alliance vs. Mazraani and MNR[1], the Federal Court of Appeal recently quashed a Tax Court of Canada decision on the basis that the trial judge violated the linguistic rights of both witnesses and counsel for Industrielle Alliance. The reasons for judgment can be found here in English and French.

The Tax Court of Canada decision

Before the Tax Court of Canada (TCC), Kassem Mazraani[2] appealed the Minister’s determination that he was not engaged in insurable employment while working for Industrielle Alliance between April and November 2012. Industrielle was an intervenor to the appeal and had taken the position that the Minister’s determination was correct since an independent contractor agreement had been concluded with Mazraani. The appeal was heard under the informal procedure before Justice Archambault and the hearing lasted 6 days. Mazraani filed his appeal in English, the Minister’s reply was in English also and Industrielle’ s intervention was in French.

In a massive 160 page decision, the TCC concluded that Mazraani was engaged in insurable employment.

The grounds for appeal

Industrielle appealed the TCC decision on numerous grounds, including :

  1. The constitutional and quasi-constitutional official language rights of Industrielle’s witnesses and counsel were violated in the course of the hearing before the TCC.
  2. The multiple questions and excessive interventions by the TCC judge gave rise to a reasonable apprehension of bias.
  3. The TCC erred in determining that Mazraani occupied insurable employment.[3]

The Federal Court of Appeal decision

The Federal Court of Appeal (FCA) allowed the appeal, quashed the TCC decision and sent it back to the TCC for a new hearing before a different judge.

1.    Official language rights

The FCA reviewed the official language rights before proceedings in federal courts :

  • English and French are the official languages of Canada and have equal status in federal courts, including the TCC;
  • Any person who appears before a federal court has the constitutional right to use the  official language of his choice per s. 133 of the Constitution Act, 1867. This right is also reflected in sections 16 and 19 of the Canadian Charter of Rights and Freedoms.[4]
  • This right applies broadly to “litigants, counsel, witnesses, judges and other judicial officers”.
  • A person’s ability to express himself/herself in both official languages does not impact such person’s constitutional right to choose either French or English in court proceedings.  One’s  ability to speak both official languages is “irrelevant”.
  • S. 15(1) of the Official Languages Act, which is a quasi-constitutional legislation, establishes a positive duty on federal courts to ensure that any person giving evidence before them may be heard, without disadvantage, in the official  language of his choice.
  • S. 15(2)  of the Official Languages Act further establishes a similar duty to ensure that simultaneous interpretation from one official language into the other is made available upon request.

After reviewing specific portions of the TCC hearing transcripts, the FCA concluded that the TCC Judge violated counsel and witnesses’ linguistic rights because :

  • Industrielle’s witness #1 expressed the desire to testify in French (Industrielle had filed its intervention in French). However, instead of arranging for an interpreter as requested by Mazraani who said he understood only basic French and respect the witness’ preferred official language, the TCC Judge granted a break for counsel to devise a compromise, which ultimately led the witness to testify in English.
  • Industrielle’s witness #2 also expressed the desire to testify in French. Once counsel began examining him in French, the Judge interrupted the examination to request that it be conducted in English, for the benefit of Mazraani.
  • Counsel for Industrielle and other witnesses were treated similarly by the TCC Judge and were denied their right to choose to speak in French because of their English language skills. Each request to speak in the official  language of their choice was treated by the Judge as a request for accommodation, as opposed to the exercise of protected official  language rights.

At par. 22, the FCA said:

« In each instance, the Judge coaxed counsel and the witnesses to use English. In conducting the proceedings, the Judge favoured English over French to accommodate Mr. Mazraani […] The Judge exerted subtle pressure on counsel Turgeon and the witnesses to forego their right to  speak in the official language of their choice, in this case French. »

The FCA concluded at par. 26 :

« The Judge’s  failure to  exercise his  duty to  ensure that the official  language rights at issue were protected not only resulted in their violation, but further resulted in delays that could have otherwise 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 FCA also concluded that Maazrani’s own language rights were also violated, despite the fact that the TCC decision was in his favour. Indeed, significant portions of testimonies were made in French and never translated for his benefit, despite his request for an interpreter.

For these reasons, the FCA quashed the TCC decision and returned it for new hearing before a different judge of the TCC.

2.    Excessive interventions by the TCC judge giving rise to a reasonable apprehension of bias.

Considering its decision on the first ground, the FCA needed not to make a determination on Justice Archambault’s level of intervention during the hearing. However, it did make an interesting comment at par. 27 of its reasons:

« Finally, Industrielle Alliance submits that the Judge’s interventions and questions to its witnesses gave rise to a reasonable  apprehension of bias. Suffice it to say that the number of interruptions and questions the Judge put to the witnesses appears to be excessive, even in the context of a party being self-represented and the proceedings being conducted informally […]  For instance,   Industrielle  Alliance contends that the Judge put no  less  than 102  questions to the witness Mr.  Michaud […] »

Considering the FCA’s reluctance from criticizing trial judges’ level of intervention[5], this was, we believe, a clear message to the trial Judge.

[1]   Industrielle Alliance, Assurance et Services Financiers inc. vs. Kassem Mazraani and the Minister of National Revenue, 2017 FCA 80.

[2]   Kassem Mazraani was self-represented both in Tax Court and Federal Court of Appeal.

[3]   Considering its decision on the first ground, the Federal Court of Appeal did not make determinations on the two other grounds, save for its comments on ground #2, discussed below.

[4]   Part I of the Constitution Act, 1982.

[5]   See for example NCJ Educational Services Limited v. Canada (National Revenue), 2009 CAF 131, involving the appeal of a Tax Court decision from the same Judge.

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Nicolas Simard is a Partner with Fasken's Tax group based in Montreal and may be reached at 514-397-5288 or at nsimard@fasken.com.

Nicolas Simard est associé du groupe de fiscalité de Fasken à Montréal et peut être joint au 514-397-5288 ou à nsimard@fasken.com.