REFERENCE: Poirier v. Poirier, 2024 ONSC 3625
COURT FILE NO.: DC-24-07
DATE: 20240808
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
LABROSSE, O’BRIEN, LEIPER, JJ.
BETWEEN:
ROLAND POIRIER
Christopher Knowles, for the Appellant
Appellant
– and –
AMANDA POIRIER
Sheila A. Beaumont, for the Respondent
Respondent
HEARD at Toronto (by videoconference): May 30, 2024
THE COURT:
REASONS FOR DECISION
Introduction
[1] This matter involves two appeals from interlocutory decisions concerning a party’s right to require that a bilingual judge be assigned to a proceeding in order for the matter to proceed as a bilingual proceeding under the Courts of Justice Act, R.S.O. 1990, c. C. 43 (“CJA”).
[2] The Appellant, Roland Poirier, appeals the decision of Pomerance J. of April 14, 2023 (“the motion judge”) and the decision of Bondy J. of April 19, 2023 (“the case conference judge”). The two decisions in question arose from a family law matter between Mr. Poirier and his former wife Amanda Poirier. Ms. Poirier did not participate in this appeal and did not file any documents either in support of or against Mr. Poirier’s appeal.
[3] The Appellant requests that the case be transferred to a bilingual judge of the Superior Court for a new case conference, that the proceeding be conducted as a bilingual proceeding with interpretation, and that all hearings be presided over by a judge who speaks English and French.
Background
[4] Mr. Poirier, the Appellant, is a francophone. He does not understand English. He was born in Quebec.
[5] The Appellant brought a motion to change the order of Ouellette J. of the Supreme Court of Ontario dated August 10, 1990. The motion to change was filed in French on or about August 24, 2022.
[6] On March 21, 2023, the Appellant drafted a requisition in Form 1 of Ontario Regulation 53/01, titled “Bilingual Proceeding Requisition,” requesting that all future hearings be presided over by a judge who speaks English and French.
[7] On March 24, 2023, the Appellant filed a Form 14B motion, with notice to the Respondent, for an order that the April 19, 2023, case conference be presided over by a bilingual judge. The supporting affidavit stated that the Appellant does not understand English, cannot read, does not have access to equipment to participate by videoconference, and can only participate by telephone.
[8] The motion judge issued an endorsement on April 14, 2023, that stated:
It seems that the Respondent will require an interpreter for those aspects of the conference that take place in English. Therefore, the interpreter can translate the Respondent’s words from French to English. It would seem that this would obviate the need for a bilingual judge. I am prepared to allow the hearing to proceed by zoom, but an interpreter will be required to ensure full and meaningful participation by the Respondent.
[9] The motion judge did not specifically address the request for a bilingual judge and proposed interpretation in the alternative. She gave no other reasons for her decision on the request for a bilingual judge.
[10] The conference proceeded with an English-speaking judge. The Appellant describes that there were communication problems. The case conference judge noted that the Appellant could not understand the hearing because of his difficulty hearing. He ordered that all future hearings in the matter be in writing, subject to a future court order.
[11] Since that time, the Appellant has alleged that he has complied with the procedural orders of the case conference judge and that he only objects to the part of that order which proposes that all future hearings be in writing.
Issues
[12] The first issue raised in this appeal is whether the motion judge’s decision, which did not specifically address the request for a bilingual judge or which implicitly denied the request for the April 19, 2023, case conference to be presided over by a bilingual judge, is correct.
[13] The second issue raised deals with the case conference judge’s decision to require that all future hearings be in writing to determine whether it was a just and equitable decision. With respect to this second issue, the case conference judge’s decision provided that the requirement for a hearing in writing would be in effect until further order of the court. This qualification to the order is sufficient to deal with the appeal of this second order and we are of the view that this procedural order should not be decided on the merits. It already provides that it can be replaced.
Standard of review
[14] In response to the first issue, the case law establishes that the rights conferred on the Appellant under s. 126(4) of the CJA are substantive rights, not procedural or discretionary. The interpretation of s. 126(4) is a question of law and the Court will have to decide whether the decision is correct: see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
Analysis
Is the motion judge’s decision correct?
[15] Section 125(1) of the CJA confirms that the official languages of the courts of Ontario are English and French. In addition, s. 126(4) of the CJA specifies that a party who speaks French has the right to require that a proceeding be conducted as a bilingual proceeding and if the party does so, the hearing will be presided over by a bilingual judge.
[16] Section 3 of Ontario Regulation 53/01 creates a presumption that if the first document filed by a party who speaks French is in French, the party has exercised the right to require under s. 126(4) of the CJA that the hearing be conducted as a bilingual proceeding and that all future hearings be presided over by a judge who speaks English and French.
[17] In Belende v. Patel, 2008 ONCA 148, 89 O.R. (3d) 494, the Court of Appeal held that the right in s. 126 is not qualified by any grant of judicial discretion and that the inherent power of the court cannot be exercised in such a way as to conflict with a statutory provision.
[18] In Bajikijaie v. Mbuyi, 2009 29486 (Ont. Div. Ct.), the Ontario Divisional Court clarified that where the appellant has met the procedural requirements to trigger the right to a bilingual hearing, this right is more than procedural, it is substantive.
[19] In her endorsement, it is clear that the motion judge was proposing to remedy the Appellant’s request for a bilingual judge by granting interpretation and a virtual hearing. She did not deal directly with the request for a bilingual judge and the solution she proposed was not in accordance with either s. 126(4) of the CJA or s. 3 of Ontario Regulation 53/01. It was an error of law not to grant the right to a bilingual hearing before a judge who speaks English and French. The motion judge’s decision must be set aside.
[20] Accordingly, the motion judge’s decision of April 14, 2023, is set aside and the case will be returned to a bilingual judge of the Superior Court for a case conference to determine the next steps in the litigation.
[21] In considering the case conference judge’s order of April 19, 2023, the Appellant advises that the procedural requirements of that order have been met.
[22] However, considering the part of this order that requires all future hearings in the matter to be in writing, it is appropriate to make a new order on the form of hearing and to replace that part of the case conference judge’s order. The evidence shows that the Appellant does not understand English, cannot read, has difficulty hearing, and has limited access to a virtual hearing. As a result, he has requested the right to participate over the telephone and appears to have the option to be supported in order to participate in a virtual hearing.
[23] This Court therefore orders that this matter proceed virtually until otherwise ordered and that the Appellant will have the option to participate by telephone.
Conclusion
[24] Pomerance J.’s order of April 14, 2023, is set aside and the case will be returned to a bilingual judge of the Superior Court for a new case conference that will be held virtually with interpretation services and the Appellant will have the option to participate by telephone.
[25] There will be no order as to costs.
Mr. Justice Labrosse
Madam Justice O’Brien
Justice Leiper
Published on: August 8, 2024 English Translated Released: October 7, 2024
REFERENCE: Poirier v. Poirier, 2024 ONSC 3625
COURT FILE NO.: DC-24-07
DATE: 20240808
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LABROSSE, O’BRIEN, LEIPER, JJ.
BETWEEN:
ROLAND POIRIER
Appellant
– and –
AMANDA POIRIER
Respondent
REASONS FOR DECISION
Published on: August 8, 2024 English Translated Released: October 7, 2024