SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-06-315832-0000
DATE: 2012 02 27

RE: Christopher Hoang and Danielle Hoang, both minors by their Litigation Guardian, San Trieu and San Trieu, personally, Plaintiffs

AND:

Adriano Vicentini, Ford Credit Canada Leasing Company and Can Hoang,

Defendants

BEFORE: Madam Justice Darla A. Wilson

COUNSEL:
D. MacDonald, M. Bennett and R. Ben, Counsel for the Plaintiffs

D. Zuber, Counsel for the Defendant, Adriano Vicentini

T. McCarthy, Counsel for the Defendant, Can Hoang

B. Mitchell, Counsel for the Defendant, Ford Credit Canada Leasing Company

HEARD: February 17, 2012

ENDORSEMENT

[ 1 ] The solicitor for the Defendant Hoang brings this motion pursuant to Rule 53.01 of the Rules of Civil Procedure , R.R.O. 1990, reg. 194 for an order that the examination for discovery transcripts of the defendant Can Hoang [“Hoang”] taken April 16, 2008 and October 7, 2009 not be used at this trial, either as read-ins for the Plaintiffs’ case or in cross examination. The basis for this motion is the fact that Hoang did not have an interpreter with him at the first discovery and on the subsequent one, some of his answers were in broken English while others were translated by the Vietnamese interpreter.

[ 2 ] It is not disputed that Hoang was born in Vietnam and that his native tongue is Vietnamese. He testified that he immigrated to Canada approximately 30 years ago and he works at a job where he has to use the English language. He speaks Vietnamese at home and a little Cantonese.

[ 3 ] He attended at the first discovery and had not requested an interpreter be provided. There was a second discovery during which Hoang had the benefit of an interpreter. He will testify at the trial with the assistance of an interpreter. Counsel for the Plaintiffs advised the Court that it is not the intention of the Plaintiffs to read in the questions where Hoang admitted his actions were not those of a reasonable parent or where he expressed remorse for his actions.

Position of the Defendant Hoang

[ 4 ] Counsel for the Defendant Hoang argued that at the first discovery, Hoang did not have the benefit of an interpreter and it is clear that there were questions that he did not understand. At the subsequent discovery, Hoang testified that some of his answers from the initial discovery were incorrect because he did not understand what was being asked of him. As a result, it is submitted, neither transcript is a good record and therefore, it is unfair to have these transcripts used at the trial. Pursuant to Rule 53.01(2),

The trial judge shall exercise reasonable control over the mode of interrogation of a witness so as to protect the witness from undue harassment or embarrassment and may disallow a question put to a witness that is vexatious or irrelevant to any matter that may properly be inquired into at the trial.

Subsection (5) of that same rule states,

Where a witness does not understand the language or languages in which the examination is to be conducted…a competent and independent interpreter shall…interpret accurately the questions put to the witness and his or her answers.

[ 5 ] It was submitted by Mr. McCarthy that the record from the discoveries is not proper and it is unfair to use it at the trial. The trial judge, it was argued, must exercise the gatekeeper function and refuse to allow the transcript to be used.

Position of the Plaintiffs

[ 6 ] It was submitted by counsel for the Plaintiffs that the onus is on the Defendant to persuade the Court that the discovery transcripts ought not to be used at the trial for any purpose. Pursuant to Rule 34.09, it is up to the party who is being examined for discovery to arrange for the interpreter, if one is necessary. When the initial discovery transcript of Hoang was read, he did not indicate that he had any difficulty comprehending the questions that were asked of him; this is not surprising given that Hoang has lived and worked in Canada since 1979. Further, the solicitors for the Plaintiffs were never advised that the first discovery ought not to be used. When the second discovery was arranged, it was a continuation initiated by the solicitor for the Plaintiffs, not a brand new discovery through an interpreter. Mr. Bennett submitted that he took Hoang through the first discovery and gave him an opportunity to correct any answers that he felt were incorrect and he did so. It would be prejudicial and unfair to the Plaintiffs to prevent them from using the transcripts at the trial.

Analysis

[ 7 ] At the outset, I will say that this issue ought to have been dealt with prior to the trial of this action. The issue of whether a party to litigation needs an interpreter for their evidence is an important one, and must be given consideration by counsel to ensure that testimony, both at discovery and at trial, is accurate and unencumbered by the question of whether or not a party understood what was being asked.

[ 8 ] I have reviewed both discovery transcripts and I have considered the evidence of Mr. Hoang on the voir dire. Rule 34.09 of the Rules of Civil Procedure places the onus on the party who is to be examined and does not understand the language of the examination to take steps to arrange for an interpreter. While I appreciate that counsel for Hoang may have only met him for the first time the morning of the discovery on the 16 th of April 2008, it ought to have been evident to her at that time that Hoang was having difficulty understanding the questions. There was no objection during the first discovery to continuing the discovery in the absence of an interpreter; nor did Hoang state that he did not understand any of the questions.

[ 9 ] At the second discovery, there was a Vietnamese interpreter arranged by the solicitor for Hoang. Counsel for the Plaintiffs inquired why there was an interpreter given that Hoang had not had one at the first discovery. Hoang responded that he thought that he had answered some questions incorrectly at the first discovery because he did not understand what was being asked. Counsel for the Plaintiffs asked Hoang to correct any answers that he felt were inaccurate from the first discovery and he did so [questions 12-45].

[ 10 ] At the voir dire , Hoang confirmed that there were some questions that he did not understand from the first discovery and wished to correct or add to his original answers. He stated that he felt more comfortable giving his evidence through a Vietnamese interpreter and he therefore requested one for the second discovery.

[ 11 ] The issue of when the need for an interpreter arises has been examined by the Court in various circumstances. In Mutual Tech Canada Inc. V. Law [1] , Juriansz J. [as he then was] stated

In my view, the court, in controlling its procedure, has jurisdiction to order an interpreter be used whenever the court finds that it is appropriate in the circumstances to do so...The preservation and enhancement of the multicultural heritage of Canadians requires that witnesses who are unable to communicate in the language of the examination are provided with interpreters…

I agree.

[ 12 ] Mr. Justice Rosenberg had the occasion to consider a similar situation to the one at hand in Espinosa v. Garisto [2] . In that case, during a trial, the solicitor for the Plaintiff submitted that the Plaintiff’s discovery evidence should not be binding on him because he did not have an interpreter. The Plaintiff testified that he had asked for an interpreter but his lawyer told him he did not need one. Justice Rosenberg noted that the obligation was on the Plaintiff to secure an interpreter if one was necessary and, after reading the discovery transcript, the judge was satisfied that the Plaintiff responded to the questions that were asked. He noted that Rule 31.09 required a party to correct answers from a discovery that were incorrect or incomplete and this had not been done. He ordered the Plaintiff was bound by his discovery evidence.

[ 13 ] Finally, in Skorski v. St. Catharines Canadian Polish Society [3] after the commencement of the trial, the Plaintiff moved for leave to give his evidence through an interpreter. Justice Quinn, in refusing the request, noted,

Where a witness professes an inability to understand the English language, and this fact is disputed by one of the parties, I do not think it desirable to have the witness testify in English and take a “wait and see” stance on the question of whether the inability indeed exists. Surely such an approach is fraught with risk. If, part way through the testimony of the witness, it is determined that his ability to fully and fairly put forward his evidence is being impaired by a lack of comprehension of, or fluency in, the English language, and an interpreter is thereafter deemed necessary, what becomes of the evidence of the witness up to that point? In my view, the proper procedure is to conduct a voir dire in which the party seeking to use an interpreter must establish, on a balance of probabilities, the need for an interpreter and any party opposing the use of an interpreter may cross-examine the witness in order opt test his or her knowledge of the English language and thereby disprove the need…

[ 14 ] I find on the evidence that Hoang ought to give his evidence at trial through an interpreter. I am not, however, persuaded that the discovery evidence ought to be struck. Clearly, Hoang struggles at times with comprehension of questions put to him in English; that is why he requested an interpreter for the second discovery. He was given an opportunity to correct his answers from the first discovery and he did so. The correspondence leading up to the arrangement of the second discovery did not confirm that it was a fresh discovery through an interpreter; it appears to have been a continuation based on undertakings made at the initial discovery. Further, at no time during either discovery did counsel for Hoang advise the solicitor for the Plaintiffs that the discovery evidence was compromised due to the lack of an interpreter. Pursuant to Rule 53.01(2), the Court has the positive duty to ensure that questions put to Hoang at this trial are fair, given the fact that he did not have the benefit of an interpreter at his initial discovery and I am alive to that concern.

[ 15 ] A review of the first discovery reveals questions being put to Hoang several times, much repetition and, in my view, improper questions being asked of the witness. Simply because questions were asked of a witness at an examination for discovery does not mean that the evidence is admissible at trial. Counsel for the Plaintiffs advised the Court that he does not intend to use questions 392-401 from the discovery taken on April 16, 2008. To avoid further interruption in proceeding with this case with the jury, I direct counsel for the Plaintiffs to

provide a list of proposed read-ins from the discovery transcripts to the solicitor for the defendant Hoang and to the Court for review forthwith.

D.A. Wilson J.

Date: 2012 02 27

[1] Mututal Tech Canada Inc. v. Law [2000] O.J. No. 2237

[2] Espinosa v. Garisto [1986] O.J. No. 418

[3] Skorski v. St. Catharines Canadian Polish Society [1999] O.J. No 434