COURT FILE NO.: 525/08
DATE: 20090608
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
BENJAMIN F. BAJIKIJAIE
Appellant
- and -
JEAN-CLAUDE MBUYI (WA KANTCHA), ALEXANDRE CISOMOLEKA MUKENDI, MULONDO AIMÉ KABUYA, TOURÉ KABONGO-MUKENDI, MULOLO WA MULOLO, ET EDDY LUKUNA WA BANTU, SOS AFRIQUE REFUGIES, RESTAURANT LOUNGE FAUBOURG INC., WAKE UP WORK INC., GOLF POUR TOUS, FIVE STAR ENTERPRISE, INTERNATIONAL CENTRE D’INFORMATION TECHNOLOGIQUE & SERVICES INC., CORPORATION NEO-CANADIENNE DE DEVELOPPEMENT ET DE LEADERSHIP COMMUNAUTAIRE ET VISION AFRICANA 2000
Defendants
In Person
Patrice A. J. Côté
for the Defendants
HEARD at Toronto: May 25, 2009
JANET WILSON J.:
The Issue on Appeal
[1] This matter, involving modest amounts of money in an award for costs, raises important questions about the nature of bilingual proceedings and the interpretation of ss. 125 and 126(1) and (2) of the Courts of Justice Act.
[2] The Appellant, Benjamin Felix Bajikijaie, filed his Statement of Claim in French, triggering s. 126 of the Courts of Justice Act, as well as s. 3 of the Regulation for Bilingual Proceedings made under the Courts of Justice Act, O. Reg. 53.01. Master Hawkins is not bilingual. He was assigned to this file as the Case Management Master. He ordered that the action be discontinued on consent. He received written submissions and fixed costs in favour of the defendants. The Appellant seeks to appeal from the Master’s order for costs, as the Appellant argues that the matter should have been dealt with by a bilingual Master.
[3] Hoy J., on April 10, 2008, granted leave to appeal the award of costs with respect to whether the Appellant’s language rights had been infringed pursuant to section 62.02(4)(b). She relied upon the Court of Appeal decision in Ndem v. Patel, 2008 ONCA 148 in reaching her conclusion:
[27] In Ndem v. Patel, the Court of Appeal set aside a summary judgment order, because the appellant’s right to a bilingual hearing was violated, and referred the matter back to the court below, without consideration of the merits of the underlying claim. Rouleau J.A. wrote, “English and French are the official languages of the courts in Ontario, and the court has a responsibility to ensure compliance with language rights under s.126 of the Courts of Justice Act. A proper interpretation of this provision is one that is consistent with the preservation and development of official language communities in Canada and with the respect and preservation of their cultures: See Beaulac, paras. 25, 34 and 45. Violation of these rights, which are quasi-constitutional in nature, constitutes material prejudice to the linguistic minority.”
Applicable Legislation
[4] Sections 125 and 126(1) and (2) of the Courts of Justice Act provide:
Official languages of the courts
125.(1) The official languages of the courts of Ontario are English and French.
Bilingual proceedings
126.(1) A party to a proceeding who speaks French has the right to require that it be conducted as a bilingual proceeding.
Idem
The following rules apply to a proceeding that is conducted as a bilingual proceeding:
The hearings that the party specifies shall be presided over by a judge or officer who speaks English and French.
[5] Section 3 of Regulation 53/01 is clear that once a party files a document in French, there is a mandatory deeming provision that all future proceedings shall be heard by a bilingual officer, master or judge. The Regulation provides:
EXERCISING THE RIGHT TO A BILINGUAL PROCEEDING
Filing first document in French
3.(1) Subject to subsection (2), if the first document that is filed by or issued at the request of a party to a proceeding is written in French, the party shall be deemed,
(a) to have exercised the right under subsection 126(1) of the Courts of Justice Act to require that the proceeding be conducted as a bilingual proceeding; and
(b) to have specified that all future hearings in the proceeding shall be presided over by a judge or officer who speaks English and French.
Case Law
[6] The case law is clear that the court system must accommodate the equal right to be heard in English and in French. The judgment in R. v. Beaulac, 1999 684 (SCC), [1999] 1 R.C.S. 768 at paragraph 39 confirms this overriding principle:
Je tiens à souligner qu’un simple inconvénient administratif n’est pas un facteur pertinent. La disponibilité de sténographes judiciaires, la charge de travail des procureurs ou des juges bilingues et les coûts financiers supplémentaires de modification d’horaire ne doivent pas être pris en considération parce que l’existence de droits linguistiques exige que le gouvernement satisfasse aux dispositions de la Loi en maintenant une infrastructure institutionnelle adéquate et en fournissant des services dans les deux langues officielles de façon égale. Comme je l’ai dit plus tôt, dans un cadre de bilinguisme institutionnel, une demande de services dans la langue de la minorité de langue officielle ne doit pas être traitée comme s’il y avait une langue officielle principale et une obligation d’accommodement en ce qui concerne l’emploi de l’autre langue officielle. Le principe directeur est celui de l’égalité des deux langues officielles.
[7] The decision in Belende v. Greenspoon (2004), 2004 5552 (ON CA), 189 O.A.C. 140 (C.A.) is unequivocal in its conclusion that filing the first document in French deems specification that all future proceedings are to be presided over by a bilingual person:
[11] Section 3(1) of Regulation 53/01 adopted pursuant to the Courts of Justice Act provides that if the first document filed by a party to a proceeding is in French, that party is deemed to have specified for purposes of s.126 that all future hearings in the proceeding be presided over by a judge or officer who speaks English and French.
Brief Factual Background
[8] The Appellant initiated proceedings on July 23, 2004 for defamation against the defendants, who include various members of the Congolese community in Toronto.
[9] The Statement of Claim was in French thereby triggering the relevant statutory provisions outlined above.
[10] The defendants retained the services of Me. Patrice Côté. The defendants chose to file their Statement of Defence in English, although several of the defendants are francophones.
[11] In 2005, Me. Côté sought an order to be removed as solicitor of record. Several of the defendants that he represented responded to the motion in French and requested that the motion be heard by a bilingual Master.
[12] The following is a note in the Case History Report, which was filed as Exhibit 2 in this motion. The original file and computer history document was ordered to be produced by Swinton J. on March 17, 2009:
October 18, 2005 Event
Motion – Remove Solicitor of Record
10:00 a.m. Est. Dur.: 0.25 Hour(s)
Master Egan
Date Scheduled: Sep. 12, 2005
Result: Adjourned to a New Date Result Date: Oct. 18, 2005
Fees Paid: Yes
bb P. Cote sol for def 416-731-9889/77c & mrec. by def. sep.16.05 resp material (memoire des defendeurs) w/s filed Oct. 14
Order Egan, M. 18-Oct-2005 to go as follows:….
No master was assigned this file. Counsel asked for a master who spoke French and for some reason this motion was put on my list.
The motion is adjourned to Master Abrams’ list of December 6, 2005 for 30 minutes.
[emphasis added]
[13] The case was then assigned to Master Abrams, who is a bilingual Master. The Case History Report notes that she declared a conflict of interest and the matter was further adjourned.
December 6, 2005 Event
Motion – Remove Solicitor of Rcrd
10:00 a.m. Est. Dur.: 0.25 Hour(s)
Master Abrams
Date Scheduled: Sep 12, 2005
Result: Adjourned to a New Date Result Date: Dec 6, 2005
Fees Paid: Yes
bb P. Cote sol for def 416-731-9889/77c & mrec. by def. sep.16.05 resp material (“memoire des defendeurs) w/s filed Oct 14. (Master Abrams conflict-email dated Oct 31/05)
[emphasis added]
[14] The motion was then scheduled before Klowak J., a bilingual judge, but did not proceed as apparently Mr. Côté resolved the issues with his clients.
[15] The action was then assigned to Master Hawkins as a Case Management Master. He is not bilingual. Here the problem begins.
[16] The Case History Report confirms that Master Hawkins was involved in several aborted case conferences, which finally did take place on May 8, 2006. It is noted that the Appellant did not participate in the case conference.
[17] A further motion was scheduled before Master Hawkins to strike the pleadings initiated by the defendants, but that matter did not proceed.
[18] On December 4, 2006, Master Hawkins made the order that is the subject matter of this appeal at the request of the defendants. The Appellant did not appear and the motion proceeded without an appearance before the Master.
[19] On consent, the Appellant’s action, and all counterclaims and crossclaims were discontinued with leave.
[20] The Master ordered costs payable by the Appellant in the amount of $6,498.28 in favour of certain defendants, and a further order for costs in the amount of $3,500.00 in favour of other defendants.
[21] The motion record filed by the defendants before Master Hawkins was in English but did contain the letter written in French that gave rise to the proceedings. The defendants did not file the Appellant’s Statement of Claim written in French in the motion record and it is not clear whether the Master in the usual course would review the pleadings when considering the issue of costs.
Conclusion
[22] I conclude that s. 3.(1) of Regulation 53.01 is mandatory in its terms: “if the first document that is filed by or issued at the request of a party to a proceeding is written in French, the party shall be deemed to have exercised the right under subsection 126(1) of the Courts of Justice Act to require that the proceeding be conducted as a bilingual proceeding; and to have specified that all future hearings in the proceeding shall be presided over by a judge or officer who speaks English and French.”
[23] The deeming provisions that require all future hearings in the proceeding to be presided over by a bilingual person clearly have been breached. A hearing includes an ex-parte motion.
[24] The case should have been assigned to a bilingual Master as originally requested and contemplated by the parties. If a bilingual Master was not available, then it should have been assigned to a bilingual judge. The request for a bilingual master is clear in the Case History Report and initially this requirement was complied with.
[25] The administrative system unfortunately failed to adequately flag this case as a bilingual matter and it was assigned to Master Hawkins. The conclusion in this decision is in no way critical of the Master it is the administrative system that has failed. I note that it is also incumbent upon counsel and the parties in bilingual matters to ensure that the matter proceeds before the appropriate bilingual court officer, as inevitably there are errors that occur in the administrative system.
[26] Me. Côté’s suggestion that his clients wished to proceed with the motion in English, and therefore a bilingual master was not necessary, does not respond to the problem. Me. Côté’s clients of course had the right to plead and file documents in English. That right does not affect the requirement that a bilingual person be assigned to hear all matters in the file, even if Me. Côté chose to file his clients’ documents in English.
[27] As the Court of Appeal made it clear in Belende v. Greenspoon, supra, the right to have a bilingual court officer is a substantive, not merely procedural right:
[15] Where, as in the present case, the appellant has met the procedural requirements to trigger a right to a bilingual hearing this right is more than purely procedural, it is substantive and the appropriate remedy is to set aside the order: see R. v. Beaulac, 1999 684 (SCC), [1999] 1 S.C.R. 768.
[28] It would be unusual in fixing costs not to review the pleadings in order to understand the nature of the proceedings and the context in which the costs award is sought. It is not clear whether the Master in this case reviewed the pleadings. It is clear that had he reviewed the Appellant’s Statement of Claim he would not have understood it. Although the documents filed with the Master for the motion for costs were in English, they included the letter written in French founding the claim for defamation. Clearly he would not have understood this letter.
[29] For these reasons, I am of the view that the order of Master Hawkins should be set aside and that the issue of costs should be determined by a bilingual Master, with the Appellant having the opportunity to make submissions.
Timetable
[30] The parties agree that a timetable is appropriate, given the extensive delays. The respondent agrees to serve and file his material on behalf of the defendants with respect to costs within 10 days of the release of these reasons.
[31] The Appellant agrees to serve and file responding material within 20 days of receipt of the respondent’s material. The parties should then proceed to schedule a matter before a bilingual Master at a mutually convenient date.
[32] The date once set should be peremptory to both sides in light of the history, barring of course real unforeseen emergencies that may arise.
Costs
[33] Although the Appellant was successful in this appeal, in light of the history and the fact that he will now have the opportunity to make submissions with respect to costs, I conclude that the costs of this appeal should be limited to his disbursements only. I therefore order that costs in the amount of $405.00, shall be paid, such amount to be set off against any award for costs that will be ordered in favour of the defendants.
JANET WILSON J.
Date of Release: June 8, 2009
COURT FILE NO.: 525/08
DATE: 20090608
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
BENJAMIN F. BAJIKIJAIE
Appellant
- and -
JEAN-CLAUDE MBUYI (WA KANTCHA), ALEXANDRE CISOMOLEKA MUKENDI, MULONDO AIMÉ KABUYA, TOURÉ KABONGO-MUKENDI, MULOLO WA MULOLO, ET EDDY LUKUNA WA BANTU, SOS AFRIQUE REFUGIES, RESTAURANT LOUNGE FAUBOURG INC., WAKE UP WORK INC., GOLF POUR TOUS, FIVE STAR ENTERPRISE, INTERNATIONAL CENTRE D’INFORMATION TECHNOLOGIQUE & SERVICES INC., CORPORATION NEO-CANADIENNE DE DEVELOPPEMENT ET DE LEADERSHIP COMMUNAUTAIRE ET VISION AFRICANA 2000
Defendants
REASONS FOR JUDGMENT
JANET WILSON J.
RELEASED: June 8, 2009