CITATION: Sera v. Ambroise, 2014 ONSC 2981

COURT FILE NO.: DC 13-00618-ML

DATE: 20140513

CORRIGENDA: 20140917

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Joshua Sera

Plaintiff

– and –

Jennifer Ambroise

Defendant

J. Irwin, for the Plaintiff

G. Shortliffe, for the Defendant

HEARD: May 1, 2014

REVISED REASONS FOR DECISION

The text of the original endorsement has been corrected with the text of the corrigendum (released today’s date)

McCarthy j.:

The Motion for Leave

[1] This was a motion by the Respondent for leave to appeal the decision of Madame Justice Gilmore (the motions judge) given on November 14, 2013. This was a bilingual proceeding. The court was assisted by interpreter Christian Murengara. In a brief endorsement given on May 1, 2013, I denied leave to appeal and dismissed the motion. What follows are my reasons for that decision.

The Motions Judge’s Decision

[2] The Respondent brought a motion for various relief including the setting aside of the previous orders of the court dating from December 19, 2011. The basis for this sought after relief was that her right to have bilingual proceedings from that date had been breached. The motions judge granted certain relief which included the right to file future documents in French. The motions judge rejected the Respondent’s request to have all previous interim orders set aside. She cited eight different reasons for doing so.

Rule 62.02

[3] This rule sets out the grounds upon which leave may be granted. The Respondent (moving party) advised the court that it was proceeding only on the second of the two potential grounds under that rule. That second ground is as follows:

62.02 (4) Leave to appeal shall not be granted unless,

….(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[4] It is noted that the grounds under this sub-paragraph of the rule are conjunctive.

The Respondent’s (Moving Party) Position

[5] The Respondent maintains her position that all of the interim orders pre-dating the adjudication of the motions judge should be set aside. She contends that her original requests for a bilingual hearing made before the case conference judges in December 2011 and January 2012 were, if not refused, then ignored. By suggesting that the Respondent proceed by way of a motion in writing in Form 14B of the Family Law Rules rather than converting the process then and there to a bilingual proceeding, the conference judges effectively deprived the Respondent of the right to have bilingual court hearings.

[6] By making an oral declaration of her desire to be heard in French, the Respondent fulfilled the procedural requirement under subsection 5 (1)(b) of Ontario Regulation 53/01 – Bilingual Proceedings, thereby becoming entitled to the substantive rights afforded by section 126 (1) of the Courts of Justice Act, R.S.O. 1990, c C.43, as amended. Those procedural and substantive rights having been denied the Respondent until November 2013, any orders emanating from the hearings held during that period must be considered a nullity and be set aside. The issues decided must be considered de novo, within the bilingual setting to which the Respondent became entitled by virtue of her oral declaration at the case conference of December 19, 2011.

[7] The leave application should be granted because there is good reason to doubt the correctness of the impugned decision and because the deprivation of language rights in these circumstances is of great importance both to the afflicted person and to the wider francophone community in Ontario. The Respondent relied upon the supplementary endorsement of the motions judge wherein the latter adverted to the importance of the issues to be appealed when granting the request for the adjournment of the pending trial.

The Applicant’s (Responding Party) Position

[8] The Applicant contends that the motions judge correctly held that there was no breach of the Respondent’s language rights to a bilingual hearing. Those rights were fully recognized and put in place since at least October 2012 after which all proceedings have taken place before a bilingual judge. Moreover, the Applicant was apprised of her rights to a bilingual hearing from the outset but did not pursue them. The endorsement of Madam Justice Rogers dated December 19, 2011, contains a confirmation that the Applicant was permitted to seek an order to that effect via a simple “14B” motion.

[9] The motions judge did not accept the Respondent’s contention that she was too fearful or felt it too risky to pursue that right. The Respondent filed documents in English, corresponded with opposing counsel in English and retained two Anglophone lawyers. It was not until October 2013 that she first sought to file documents in French. At no time was there any denial of her right to seek a bilingual proceeding. No judge proceeded in English contrary to the wishes of the Respondent or in the face of a request that the matter be converted to a bilingual proceeding.

[10] Moreover, the facts that have driven the litigation and led to the court orders made are the same, whether viewed in the French or English language. What the Respondent is now attempting to do is to start all over again, re-litigate the issues and overturn unfavourable orders on the basis that her language rights were breached.

[11] Finally, the orders in question were interim orders only. There has been no final disposition on the issues of custody and access. With the trial of this matter scheduled to proceed in mid to late May of this year, that final disposition is imminent. There will be a fulsome review of fresh evidence at the bilingual trial. To the extent that the Respondent was unable to avail herself of language rights in the proceeding, she has not been permanently or seriously prejudiced.

Is There Good Reason to Doubt the Correctness of the Order in Question?

[12] The question to be asked at the leave stage is whether the decision of the motions judge is open to serious debate and, if so, whether that decision warrants resolution by a higher level of judicial authority: see Apotex Inc. v Eli Lilly & Co., 2013 ONSC 1135 (Div. Ct.).

[13] In my view, the decision cannot be open to serious debate. The motions judge was both liberal and generous in according to the Respondent unfettered substantive and procedural rights to file all future documents in French. What the motions judge was not prepared to do was to render all of the orders given in the matter to date a nullity on the basis that the proceeding had not unfolded as a bilingual matter from the outset. Her reasons for denying this relief were in my view, fulsome, thoughtful, practical and non-debatable.

[14] The motions judge found that the Respondent did not pursue a bilingual hearing despite being made fully aware of her right to do so as far back as December 19, 2011. The motions judge did not accept the Respondent’s suggestion that she was either fearful or lacked understanding in respect of that right.

[15] The motions judge distinguished the case law put before her by the Respondent. This was neither a situation of a refusal to conduct a bilingual hearing nor one of substantive steps being taken in English in a hearing that was already categorized as bilingual. The motions judge also distinguished the present case from one where the court pushed ahead in one language despite a clear request for a bilingual hearing from one of the parties. The motions judge gave due consideration to the fact that the Respondent here was afforded the opportunity to seek a bilingual hearing order and even provided with direction from the court in that regard.

[16] The motions judge noted that the transcripts of the various hearing were not before the court. It was difficult in those circumstances to make any findings of fact as to whether a waiver of rights occurred.

[17] The motions judge went on to consider the effect of potential prejudice. She determined that the fact of the pending trial on all outstanding issues mitigated any prejudice suffered. Moreover, it was apparent to the motions judge on the facts before her, that whatever the language employed at the hearings, the subject orders would have been granted in any event.

[18] There appears to me no good reason to doubt the correctness of the impugned decision. The motions judge conducted an analysis of all the salient facts and the relevant law, gave fulsome reasons and arrived at the only conclusion that a careful consideration of the matter could yield.

Does the Proposed Appeal Involve Matters of Importance?

[19] Since the test for leave is conjunctive, the Respondent’s motion must fail as she has not satisfied the court that there is good reason to doubt the correctness of the decision in question.

[20] For the sake of completeness, however, I find it desirable to consider the second part of the conjunctive test under Rule 62.02 (4)(b).

[21] There is no doubt that French language rights are of fundamental importance in this province. Not only do they offer some measure of security to the francophone community, a community which has formed an integral part of the historical and cultural fabric of this province since Confederation, but they also serve the wider purpose of promoting access to justice for the greatest number of Ontario citizens.

[22] In my opinion, however, the facts of this case leave it outside the rarefied spectrum of language rights cases which might qualify as sufficiently important to warrant leave being granted. The Respondent’s language rights were never denied to her. They were not suspended, trammeled or even questioned. At the earliest opportunity, they were afforded to her. They have been respected and now enshrined in the proceedings.

[23] The denial of the form of relief sought by the Respondent was based upon the motions judge’s findings on matters wholly unrelated to substantive language rights: the Respondent’s election not to avail herself of procedural steps, the Respondent’s conduct during the litigation, the absence of substantial prejudice, the nature of the orders and the imminence of trial, the unalterable facts upon which the targeted orders were granted in the first place and the paucity of evidence on what took place at the hearings.

[24] The comments made by the motion judge in her supplementary endorsement touching on the importance of the issue of language rights were not misplaced. Indeed, her entire decision on the substantive relief sought is permeated by an overriding concern for the sanctity of French language rights. I share that concern. That does not, however, alter the basis upon which the motions judge made her decision. The question of whether the matters for the proposed appeal are important on a leave application should not be determined based merely upon the suggestion by the moving party that they involve language rights. To address the question appropriately, one is obliged to consider the decision as a whole, to construe from it the ratio decidendi and to arrive at a determination as to whether the proposed appeal involves matters of such importance that leave to appeal should be granted. In this case, language rights would merely serve as a background to the matters to be considered on the proposed appeal. Those matters would necessarily be limited to findings of fact, an assessment of prejudice and considerations of the applicability of case law. I am of the opinion that those matters are not of sufficient importance to warrant granting leave to appeal in these circumstances.

Disposition

[25] For the foregoing reasons, leave to appeal the decision of Madame Justice Gilmore dated November 14, 2013 is denied. The motion is dismissed. The trial of this matter shall take place when called during the sittings commencing May 20, 2014.

Costs

[26] If the parties are unable to arrive at an agreement on costs of this motion and the emergency motion withdrawn by the Respondent following the release of my short endorsement on this motion, the parties may address the issue by written submissions according to the following schedule and in accordance with the following directions: (a) the Applicant Father shall serve and file costs submissions limited to three pages by June 15, 2014; (b) the Respondent Mother shall serve and file responding costs submissions limited to two pages by June 30, 2014; (c) the Applicant Father shall serve and file his reply submissions, if any, limited to one page by July 15, 2014.

Justice John R. McCarthy

Released: September 17, 2014

CORRIGENDA

1. The spelling of the respondent’s surname in the citation and in the style of cause has been corrected to read: Ambroise