French Language Obligations of Administrative Tribunals in Ontario

1. French Language Obligations of Administrative Tribunals in Ontario Paul Le Vay

2. French Language Services Act Preamble • Acknowledges the historic and honouredstatus of the French language in Ontario; • French is an official language in the courts and in education in the province; • Recognizes the goal of preserving the cultural heritage of the French speaking population for future generations; and • Desirable to guarantee the use of the French language in institutions of the Legislature and the Government of Ontario.

3. French Language Services Act • Per Court of Appeal in Lalonde v. Ontario (Montfort Hospital case): The FLSA. is an example of the provincial legislature of Ontario using s. 16(3) of the Charter to build on the language rights contained in the Constitution Act, 1867 and the Charter to advance the equality of status or use of the French language. The aspirational element contained in s. 16(3) advancing the French language toward substantive equality with the English language in Ontario -- is of significance in interpreting the FLSA – it ought to be given a large and liberal interpretation.

4. French Language Services Act s. 5 (1) A person has the 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. Per s. 1: “government agency” means….“(b) a board, commission or corporation the majority of whose members or directors are appointed by the Lieutenant Governor in Council”

5. French Language Services Act • Includes both the services provided to the public by the administrative tribunal’s secretariat and the proceedings conducted by an agency, board or commission • Re designated areas: in most cases, the services of an administrative tribunal are only offered in one location, therefore French must be offered whether or not it is not located in a designated area • Costs attributable to meeting linguistic requirements must be paid by agencies, boards and commissions and cannot be passed along to parties

6. French Language Services Act • s. 7: 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. • Per Lalonde v. Ontario : “The word "necessary" means that services can only be limited when this is the only course of action that can be taken…at a minimum they require some justification or explanation…it cannot simply invoke administrative convenience and vague funding concerns as the reasons for doing so”

7. Scope of French Language rights • Driven by choice of the parties – choose whether they wish to be heard in French • Little case law on what is specifically required for compliance with s. 5 (1) BUT nature of rights and purpose of FLSA means expansive interpretation • Adjudicators and tribunal support personnel must be able to understand parties in language of their choice – using interpreter would NOT comply with s. 5 and unlikely in most cases to meet the test for a s. 7 exemption • Signs, literature, information and advice should be available in French • French-speaking staff should be available on a permanent and reliable basis 

8. Scope of French Language rights • Notice of proceedings in language of choice - therefore the most effective notification will be in both languages. • Filing and exchanging documents in language of parties’ choice • The provision of linguistic assistance or the translation of documents is by the tribunal is best practice • BUT the tribunal's responsibility may be limited to providing documents that it is producing in the language(s) chosen by the parties • Reasons should be delivered in language(s) chosen pby parties

9. LSUC Rules of Professional Conduct • 3.2-2A Obliges lawyer to advise a client of the client’s language rights, including the right to proceed in the official language of the client’s choice. • 3.2-2B The lawyer shall not undertake the matter unless the lawyer is competent to provide the required services in the official language of the client’s choice • Commentary provides that lawyers must be aware of constitutional and legislated language rights, that they must be explained to the client as soon as possible and that the lawyer must be competent in the chosen language

10. Language Rights and the Courts • S. 530 of Criminal Code provides right to trial before judge and/or jury which speak the official language of the accused or both official languages – includes preliminary inquiry • Where there is more than one accused and they choose different languages, the proceeding must be bilingual • Per R v. Munkonda 2015 Ontario Court of Appeal this means • Accused retains right to equal access to proceedings in his language notwithstanding imposition of bilingual proceeding; and • The court and the prosecution must be bilingual and must not favour either of the official languages.

11. Language Rights and the Courts • In civil cases per s. 125 of Courts of Justice Act French and English are the official languages of Ontario Courts BUT English is the usual language, French the exception • Section 126 of CJA allows a French speaker to require that a proceeding be conducted as bilingual, this means: • Judge speaks English and French • Interpretation of oral proceedings provided • French documents may be filed in Family Court, Ontario Court and Small Claims – translations will be provided on request • Bilingual juries and right to file pleadings in French in regions designated under the Act

12. Language Rights and the Courts • s. 5(1) of FLSA governs right to deal with MAG court administration re filing of documents, obtaining court dates and receiving basic information from court staff • To obtain these services in French, Court office must be located in a designated area: 10% of population/5,000 residents must be French speaking • 25 designated areas – covering 85% of French speakers in Province • FLSA areas do not completely overlap with CJA designated areas

13. Access to Justice in French report • In response to recommendation by French Language Services Commissioner, Attorney-General appointed a bench and bar committee to examine specific questions concerning access to justice in French before courts – reported in 2012 • Some principal findings • Stakeholders not informed about rights and responsibilities • Early awareness and access at all points of contact was key • Proceeding in French took longer and was more expensive • Coordination of efforts between court staff, judiciary and lawyers necessary

14. Access to Justice in French • Two objectives essential for equal justice: • Clear service objective: • Equivalent quality to English proceedings • Ability to use French throughout process • Equivalent cost an timeliness • Services must be actively offered • Clearly visible, readily accessible, well publicized and high quality • 39 recommendations made in a total of 9 different areas • Holistic approach with focus on litigants and on participation by all stakeholders and coordination of efforts

15. Implementation report • AG and FLS Commissioner announced second committee to report on how to implement recommendations • Reported to AG mid 2015 • Pilot project launched in Ottawa and region to put recommendations into practice • Goal is to then roll out across province • What lessons for administrative tribunals? • They carry an increasing share of dispute resolution and policy making load + are often designed for direct citizen participation • Likely to be subject of increased scrutiny re French services