Markwick v. Canadian Conference of Catholic Bishops, 2010 HRTO 113

Human Rights Tribunal of Ontario

B E T W E E N:

Michael Markwick

Applicant

-and-

Canadian Conference of Catholic Bishops (CONCACAN Inc.), Benoît Bariteau, Micheline Dubé, Bede Hubbard, Mario Paquette and James Weisgerber

Respondents

INTERIM DECISION

Adjudicator: Kaye Joachim

Date: January 20, 2010

Citation: 2010 HRTO 113

Indexed as: Markwick v. Canadian Conference of Catholic Bishops

1This purpose of this Interim Decision is to determine whether the respondents’ decision to communicate with the Tribunal and the applicant in French violates the applicant’s right to a fair, just and expeditious hearing of his Application.

The Application

2The applicant filed a complaint with the Ontario Human Rights Commission on March 26, 2008 alleging discrimination in employment on the basis of sex, colour, race, family status, sexual solicitation and reprisal.

3The respondents have chosen to communicate with the Tribunal and the applicant in all correspondence in this Application in French. The applicant does not speak or read French sufficiently to understand the material submitted by the respondents.

4The Tribunal’s practice in bilingual applications is to communicate during the pre-hearing process in the language of French or English as indicated by the parties. In this case, as the applicant prefers communication in English and the respondents prefer communication in French, all written communication from the Tribunal to the parties is provided in both English and French. A bilingual case processing officer is available to answer oral inquires from the parties in their language of choice. However, the Tribunal’s practice is to accept written communications from the parties in the language in which it is received. The Tribunal does not translate the applicant’s material into French or the respondents’ material into English. During the hearing process, the Tribunal will provide translation of the proceedings and the oral evidence of the witnesses from French to English and English to French as required and the hearing will be conducted by a bilingual adjudicator.

5The applicant filed a Request for Order during Proceedings requiring the respondents to communicate with him in English. The applicant submits that he is not fluent in French and that this fact is known to the respondents. In all communications with him prior to the Application, the respondents communicated to him in English. He notes that the corporate respondent asserts that as a matter of corporate policy, it is bilingual and capable of conducting the proceedings in English. He notes that the respondents’ counsel is also fully bilingual. He alleges that the respondents’ decision to correspond with him and the Tribunal in French is intended to frustrate his ability to pursue this Application and is an abuse of the Tribunal’s process.

6The respondents concede that the Conference of Catholic Bishops is a bilingual organisation. However, they assert that the majority of their staff uses French as a first language. They assert their right under section 5 of the French Language Services Act, R.S.O. 1990, c.F. 32, as amended, to communicate with the Tribunal in French. They note that the applicant has the option to retain a bilingual representative. Section 5 provides:

5.(1) A person has the right in accordance with this Act to communicate in French with, and to receive available services in French from, any head or central office of a government agency or institution of the Legislature, and has the same right in respect of any other office of such agency or institution that is located in or serves an area designated in the Schedule.

7The applicant does not have a representative. He asserts that the Code has primacy over the French Language Services Act and that the Code requires that he have access to the Tribunal process in a non-discriminatory manner. He asserts that his inability to comprehend the respondents’ written materials impedes his ability to access the Tribunal’s procedures.

8In my view, the interrelationship between the French Language Services Act and the Code is not relevant. The respondents are entitled to exercise their rights under that Act and correspond with the Tribunal in French, just as the vast majority of parties correspond with the Tribunal in English.

9The issue raised by the applicant is really about his ability to access the Tribunal’s services. The Tribunal does communicate with the applicant in English, but it does not translate the respondents’ communications into English. Therefore, to the extent that communications occur in French, they are by other parties who are exercising their rights to communicate in French in accordance with Ontario law.

10It may be that the applicant will need to obtain the assistance of a bilingual representative or engage a translation service to understand the respondents’ documents. There is little difference between this situation and the situation of a person whose mother tongue is not English or French, who has difficulty in understanding legal documents. They too must engage the assistance of language or legal interpreters. Moreover, in this case, the right to communication in French is guaranteed by the Act.

11I accept that a person who is not fluent in the language of the Tribunal processes, whether it is English or French, faces additional challenges in representing themselves before the Tribunal. The Tribunal cannot eliminate all these challenges. By offering translation services during the mediation and hearing process, the Tribunal attempts to alleviate some of these challenges and comply with its obligation to provide its services in French and English.

12The Request for an order requiring the respondents to communicate in English is denied.