HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jean-Yves Bernard
Applicant
-and-
Lakehead University, Lakehead University Faculty Association, Gillian Siddall, Ray Raslack, Laurie Hayes and Frederick Gilbert
Respondents
AND BETWEEN:
Ronald Harpelle
Applicant
-and-
Lakehead University, Lakehead University Faculty Association, Gillian Siddall, Ray Raslack, Laurie Hayes and Frederick Gilbert
Respondents
INTERIM DECISION
Adjudicator: Maureen Doyle
Indexed as: Bernard v. Lakehead University
WRITTEN SUBMISSIONS
Jean-Yves Bernard, Applicant
Self-represented
Ronald Harpelle, Applicant
Self-represented
Lakehead University, Respondent
Andrew Pinto, Counsel
Introduction
1These are Applications filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging reprisal or threat of reprisal in the context of the applicants’ employment.
2On February 1, 2013, the respondent university (the “university”) filed a Request for Order During Proceedings (“RFOP”) seeking an order that the hearing of these Applications proceed in English only. Alternatively, the university requests that the hearing of these Applications proceed in English with the exception that the evidence provided by the applicant Bernard in his examination-in-chief proceed in French with English translation provided to the other parties.
3In its RFOP, the university has requested that this issue be dealt with by way of conference call. I have determined that the most expeditious manner in which to deal with the RFOP is in writing, and accordingly, this Interim Decision is issued.
4The applicant Bernard filed his Application in French and communicates with the Tribunal in French, and the applicant Harpelle has communicated with the Tribunal in both French and English. Both applicants have expressed a preference to proceed with the hearing in French.
5In its RFOP, the university refers to sections 40, 41 and 43 (3) (a)-(g) of the Code, in particular noting the language “fair, just and expeditious resolution of the merits” in relation to the Tribunal’s disposition of the matters before it.
6With respect to subsection 43(3) (a)-(g), the university submits that the:
Code’s direction with respect to the Tribunal employing active adjudication to fairly and expeditiously resolve applications…must also be considered with respect to the question of balancing language rights alongside the time and resources of the parties and Tribunal.
7The university also cites the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009, S.O. 2009, c.33, Sched. 5, (“ATAGAA”), stating that the tribunal must be “accountable, transparent and efficient in its operations while remaining independent in its decision-making”.
8The university also makes reference to the Tribunal’s Rules of Procedure, and submits that the purpose of the Rules “includes ‘the opportunity for fair, just and expeditious proceedings’”. The university similarly submits that Rule 1.1 “describes the need to process and adjudicate hearings in a manner that addresses the merits of the application in an expeditious way”. It notes that Rule 1.7 (w) permits the Tribunal to “take any other action that the Tribunal determines is appropriate” in order to provide for the “fair just and expeditious resolution of any matter before it”.
9The university also submits that the Tribunal “does not have a stand-alone language or communication policy”, but notes that Rule 1.11 states that parties may communicate with the Tribunal in either French or English and that according to Rule 3.8, proceedings may be conducted in English, in French or bilingually.
10The university submits that the Tribunal is a government agency for purposes of the French Language Services Act, R.S.O. 1990, c. F.32 (“FLSA”), and that according to s. 7 of the FLSA, an individual’s right to receive services in French is limited to “such limits as circumstances make reasonable and necessary, if all reasonable measures and plans for compliance with this Act have been taken or made”.
11The university submits that it intends to call 21 witnesses, all of whom will present their evidence in English, and it estimates that a minimum of 35 days of hearing will be required for these Applications.
12The university submits that if the hearing proceeds in English and in French, it will “become completely unmanageable, unduly lengthy and needlessly expensive for all parties and, in fact, contrary to the provisions of the French Language Services Act and the Human Rights Code.”
13The university submits that the hearing of these Applications should proceed only in English because: the incidents which are the subject matter of the Applications took place entirely in English and the allegations ought therefore to be “examined by the Tribunal in the language that it occurred”; the applicants are highly educated professors who teach, research and participate in the life of the university in English; the respondents’ witnesses will testify in English and translation will be expensive and cause delay “and serve no purpose”; and according to s. 7 of the FLSA, there is no absolute requirement that hearings at administrative tribunals be conducted in French “because of individual preference”.
14It notes the applicants’ choice of language for communicating with the Tribunal. It also submits, however, that the applicants will not be prejudiced by proceeding in English only as they have participated in grievance proceedings in English.
15The university also states that although the Tribunal has indicated that an interpreter will be in attendance at the hearing dates in this matter, it needs further clarification, as “it is not clear whether the applicants are requesting or whether they will be permitted to receive French translation of witness testimony in English”.
16The applicants oppose the RFOP and submit that the hearing should proceed as a bilingual matter. They assert their right and their need to communicate in French, as it is their native tongue. They submit that in legal proceedings, they would be disadvantaged if the hearing were only to proceed in English or if only examination in chief of the applicant Mr. Bernard were to proceed in French. They submit that they already feel at a disadvantage as they are not represented by counsel, and that to force them to communicate in English would be to compound the disadvantage they feel. They submit that the comparison to grievance proceedings is not apt, as it was the union that was the party in those proceedings, not the applicants as individuals. With regard to the fact that they work at the university in English, Mr. Bernard submits that he publishes in French.
DECISION
17It is useful to reproduce in their entirety the provisions of the Code cited by the respondent:
The Tribunal shall dispose of applications made under this Part by adopting the procedures and practices provided for in its rules or otherwise available to the Tribunal which, in its opinion, offer the best opportunity for a fair, just and expeditious resolution of the merits of the applications.
This Part and the Tribunal rules shall be liberally construed to permit the Tribunal to adopt practices and procedures, including alternatives to traditional adjudicative or adversarial procedures that, in the opinion of the Tribunal, will facilitate fair, just and expeditious resolutions of the merits of the matters before it.
(1) The Tribunal may make rules governing the practice and procedure before it.
(2) The rules shall ensure that the following requirements are met with respect to any proceeding before the Tribunal:
An application that is within the jurisdiction of the Tribunal shall not be finally disposed of without affording the parties an opportunity to make oral submissions in accordance with the rules.
An application may not be finally disposed of without written reasons.
(3) Without limiting the generality of subsection (1), the Tribunal rules may,
(a) provide for and require the use of hearings or of practices and procedures that are provided for under the Statutory Powers Procedure Act or that are alternatives to traditional adjudicative or adversarial procedures;
(b) authorize the Tribunal to,
(i) define or narrow the issues required to dispose of an application and limit the evidence and submissions of the parties on such issues, and
(ii) determine the order in which the issues and evidence in a proceeding will be presented;
(c) authorize the Tribunal to conduct examinations in chief or cross-examinations of a witness;
(d) prescribe the stages of its processes at which preliminary, procedural or interlocutory matters will be determined;
(e) authorize the Tribunal to make or cause to be made such examinations of records and such other inquiries as it considers necessary in the circumstances;
(f) authorize the Tribunal to require a party to a proceeding or another person to,
(i) produce any document, information or thing and provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system, to produce the information in any form,
(ii) provide a statement or oral or affidavit evidence, or
(iii) in the case of a party to the proceeding, adduce evidence or produce witnesses who are reasonably within the party’s control; and
(g) govern any matter prescribed by the regulations.
18The Tribunal’s Rules of Procedure cited by the university state as follows:
Introduction
The Tribunal has the authority to make rules to govern its practices and procedures under the Ontario Human Rights Code (“Code”).
The purpose of these Rules of Procedure (“Rules”) is to enable the Tribunal to fulfill its mandate under the Code by providing:
1.a fair, open and accessible process to deal with applications made under the Code, and
2.the opportunity for fair, just and expeditious proceedings for the resolution of applications made under the Code.
RULE 1
Application and Interpretation of Rules
1.1 These Rules apply to all proceedings before the Tribunal under Part IV of the Code and will be liberally interpreted and applied by the Tribunal to facilitate an accessible process and to ensure the fair, just and expeditious resolution of the merits of the matters before it.
1.7 In order to provide for the fair, just and expeditious resolution of any matter before it the Tribunal may:
a) lengthen or shorten any time limit in these Rules;
b) add or remove a party;
c) allow any filing to be amended;
d) consolidate or hear applications together;
e) direct that Applications be heard separately;
f) direct that notice of a proceeding be given to any person or organization, including the Commission;
g) determine and direct the order in which issues in a proceeding, including issues considered by a party or the parties to be preliminary, will be considered and determined;
h) define and narrow the issues in order to decide an Application;
i) make or cause to be made an examination of records or other inquiries, as it considers necessary;
j) determine and direct the order in which evidence will be presented;
k) on the request of a party, direct another party to adduce evidence or produce a witness when that person is reasonably within that party’s control;
l) permit a party to give a narrative before questioning commences;
m) question a witness;
n) limit the evidence or submissions on any issue;
o) advise when additional evidence or witnesses may assist the Tribunal;
p) require a party or other person to produce any document, information or thing and to provide such assistance as is reasonably necessary, including using any data storage, processing or retrieval device or system; to produce the information in any form;
q) on the request of a party, require another party or person to provide a report, statement or oral or affidavit evidence;
r) direct that the deponent of an affidavit be cross-examined before the Tribunal or an official examiner;
s) make such further orders as are necessary to give effect to an order or direction under these Rules;
t) attach terms or conditions to any order or direction;
u) consider public interest remedies, at the request of a party or on its own initiative, after providing the parties an opportunity to make submissions;
v) notify parties of policies approved by the Commission under s.30 fo the Code, and receive such submissions on the policies;
v.1) make such orders or give such directions as are necessary to prevent abuse of its process and ensure that the conduct of participants in Tribunal proceedings is courteous and respectful of the Tribunal and other participants; and
w) take any other action that the Tribunal determines is appropriate.
1.11 Individuals are entitled to communicate with the Tribunal in either English or French.
RULE 3
3.8 Tribunal proceedings may be conducted in English, in French or bilingually and, where requested, with interpretation in American Sign Language (ASL) or Quebec Sign Language (QSL). A party wishing all or part of a proceeding be conducted in French or requiring interpretation in ASL or QSL must notify the Registrar as soon as possible.
19The FLSA provides as follows:
(1) A person has a 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.
The obligations of government agencies and institutions of the Legislature under this Act are subject to such limits as circumstances make reasonable and necessary, if all reasonable measures and plans for compliance with this Act have been taken or made.
20The ATAGAA states as follows:
- The purpose of this Act is to ensure that adjudicative tribunals are accountable, transparent and efficient in their operations while remaining independent in their decision-making.
21The Tribunal’s processes are available to parties in English and in French. As stated in Lincourt v. Le Centre de santé communautaire Hamilton/Niagara, 2011 HRTO 528, in bilingual applications, the Tribunal’s practice in the hearing process is to 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”. This is in accordance with Rule 3.8 of the Tribunal’s Rules of Procedure.
22The university argues that the Tribunal’s mandate to provide resolution of disputes in a manner which is expeditious is not compatible with providing a bilingual hearing in this matter in which it proposes to call 21 witnesses. Whether it will be necessary or desirable for the university to call 21 witnesses is a question the adjudicator may address separately at the appropriate time in accordance with the provisions of Rule 1.7, but even if the university ultimately does call all of the witnesses it currently proposes, the Tribunal is responsible to provide dispute resolution which is fair and just, as well as expeditious. In circumstances where the applicants, whose first language is French, have communicated with the Tribunal in French and have indicated that they would feel disadvantaged at legal proceedings in English, and where the Tribunal has obligations pursuant to the FLSA and has the capacity to alleviate the challenge of proceedings in French or English, a bilingual hearing is consistent with the Tribunal’s responsibility to provide dispute resolution which is fair, just and expeditious. This is not altered by the fact that the hearing will likely be rendered more lengthy by the use of an interpreter.
23The university also submits that as the events relevant to the Application occurred in English, the Tribunal should consider them in English. It is not the case that the Tribunal conducts hearings only in the language in which the events occurred occur, and in fact, may make interpretation services available to individuals whose native tongue is neither French nor English, even though the events they complain of may have occurred in French or English.
24The university also argues that the right to services in French pursuant to the FLSA is not an absolute right, according to section 7 of that Act. It appears to rest its argument on the fact that the applicants are accustomed to speaking English and on the length of time and the cost associated with the hearing of these Applications, and consequently asks the Tribunal to limit the applicants’ rights to services in the French language because it is reasonable and necessary to do so. It does not appear to challenge the appropriateness of bilingual hearings in general, but merely in these circumstances, where it has signalled its intention to call 21 witnesses and stated its hearing estimate of more than 35 days. The Tribunal has a practice of providing bilingual hearings, as described above, and as provided for in its Rules of Procedure. I do not find that the fact that the applicants are accustomed to speaking English at work or the potential length of these proceedings are circumstances which make it reasonable and necessary to derogate from the rights otherwise accorded to the applicants under s. 5 of the FLSA.
25Finally, I note that the university seeks clarification with respect to the extent of the use of the interpreter at the hearing. Typically, this question is addressed at the outset of a hearing and is subject to change through the course of the hearing. The use of an interpreter may range from word for word interpretation of “everything” to interpretation on an “as needed basis”. It may vary from speaker to speaker and may evolve through the course of the proceedings. Accordingly, it is not useful to pursue a commitment from any party on this question at this point.
26Having regard to the above analysis, the RFOP is dismissed.
27The parties are reminded of the availability of mediation/adjudication, pursuant to Rule 15A of the Tribunal’s Rules of Procedure.
Dated at Toronto, this 6th day of March, 2013.
“Signed by”
Maureen Doyle
Vice-chair