Conseil scolaire francophone de la Colombie-Britannique et al. v. British Columbia et al., (2013) 341 B.C.A.C. 1 (SCC)

• Judge: McLachlin, C.J.C., LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner, JJ.
• Court: Supreme Court of Canada
• Case Date: April 15, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 341 B.C.A.C. 1 (SCC);2013 SCC 42;[2013] 9 WWR 425;361 DLR (4th) 227;[2013] 2 SCR 774

Conseil scolaire v. B.C. (2013), 341 B.C.A.C. 1 (SCC);

    582 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2013] B.C.A.C. TBEd. JL.058

Conseil scolaire francophone de la Colombie-Britannique, Hélène Reid, Paul Rostagno, Annette Azar-Diehl, Pierre Massicotte, Line Beauchemin, Alain Milot, Mélanie Boucher, Valérie Walters, Caroline Bédard, Lise Buitendyk, Isabelle Chenail, Kim Gerry, Louise Baldo, Nicole Leblanc, Guy Bourbeau, Suzanne Martin, Lise Séguin, Kim Davis, Valérie Sicotte, Chantal Ricard, Nadie Savard, Marie-Christine Wilson, Stéphane Perron, Marie-Nicole Dubois, Bruno Calvignac, Carine Hutchinson, Jackie Pallard, Kathleen Bayzand, Guy Champoux, Rachel Chirico, Cate Korinth, Ann Quarterman and Caroline Rousselle (appellants) v. Her Majesty the Queen in Right of the Province of British Columbia and Minister of Education of the Province of British Columbia (respondents) and Attorney General of Ontario, Commissioner of Official Languages of Canada and Association des juristes d'expression française de la Colombie-Britannique (interveners)

(34908; 2013 SCC 42; 2013 CSC 42)

Indexed As: Conseil scolaire francophone de la Colombie-Britannique et al. v. British Columbia et al.

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner, JJ.

July 26, 2013.

Summary:

The Conseil Scolaire Francophone de la Colombie-Britannique (CSFCB), the Fédération des Parents Francophones de Colombie-Britannique (Fédération) and 33 individual parents brought an action against the Province of British Columbia and the Minister of Education (collectively, the Province) alleging violations of the Province's obligations under s. 23 of the Charter. The Province applied to remove the CSFCB and the Fédération as plaintiffs, and add the CSFCB as a third party. The Province contended that neither the CSFCB nor the Fédération was entitled to assert the linguistic rights guaranteed under s. 23 or bring an action to protect those rights. In support of their position, the CSFCB and the Fédération filed affidavits, with 195 pages of untranslated French documents attached that they sought to tender for the truth of their contents under the business records exception to the hearsay rule. The Province notified the CSFCB and the Fédération that evidence in the French language was not admissible and offered to co-operate in preparing an agreed statement of facts in English. The CSFCB and the Fédération applied for a declaration that untranslated exhibits in the French language, attached to an affidavit, be considered by the court without a certified translation.

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 1043, dismissed the application. The CSFCB and the Fédération appealed (first appeal). The parties continued the proceedings below without waiting for the outcome of the appeal.

The British Columbia Supreme Court, in a decision reported at [2011] B.C.T.C. Uned. 1219, granted the Province's application in part and dismissed the Fédération's claim, but not the CSFCB's claim. This order was also appealed, the appeal was heard and judgment was reserved.

The British Columbia Court of Appeal, in a decision reported at 323 B.C.A.C. 270; 550 W.A.C. 270, heard the first appeal even though it was technically moot. As the litigation was proceeding, the issue would be raised again during the trial; it was in the interests of judicial economy to decide the appeal. The court found that the requirement for civil proceedings in British Columbia to be conducted in English was prescribed by statute; therefore a British Columbia Supreme Court judge presiding over civil proceedings lacked discretion to admit documentary evidence in any other language for the truth of its contents without an accompanying English translation. The CSFCB and the 33 individual parents appealed the decision.

The Supreme Court of Canada, LeBel, Abella, and Karakatsanis, JJ., dissenting, dismissed the appeal, but with costs throughout to the appellants where they had raised a novel issue in the context of a broader Charter challenge.

Civil Rights - Topic 2702

Language - General principles - Use of language in court proceedings - The Supreme Court of Canada stated that each of the provinces had the power under the Constitution, subject to certain restrictions, to make laws governing the language to be used in its courts - This power derived from the provinces' jurisdiction over the administration of justice - The British Columbia legislature had exercised its power to regulate the language to be used in court proceedings in the province by adopting two different legislative provisions which required civil proceedings, including exhibits attached to affidavits filed as part of those proceedings, to be in English, namely the Proceedings in the Courts of Justice Act, 1731 (U.K.), 4 Geo. II, c. 26 and rule 22-3 of the Supreme Court Civil Rules (B.C.) - The court rejected the appellants' submission that the British Columbia courts retained a residual discretion to admit documents in languages other than English without an English translation - The British Columbia legislature had ousted the courts' inherent jurisdiction and required that court proceedings in the province be conducted in English - Although the court dismissed the appeal, it awarded costs throughout to the appellants where they had raised a novel issue in the context of a broader Charter challenge - See paragraphs 1 to 65.

Civil Rights - Topic 2702

Language - General principles - Use of language in court proceedings - The Supreme Court of Canada held that the British Columbia legislature had exercised its power to regulate the language to be used in court proceedings in that province by adopting two different legislative provisions which required civil proceedings, including exhibits attached to affidavits filed as part of those proceedings, to be in English, namely the Proceedings in the Courts of Justice Act, 1731 (U.K.), 4 Geo. II, c. 26 ("1731 Act") and rule 22-3 of the Supreme Court Civil Rules (B.C.) - The court rejected the appellants' submission that the 1731 Act had been impliedly repealed - No legislation had "occupied the field" of the 1731 Act with respect to civil proceedings to the extent required for a finding of implied modification - In respect of criminal proceedings, there was no dispute that the 1731 Act had been modified by s. 530 of the Criminal Code - See paragraphs 42 to 57.

Civil Rights - Topic 2702

Language - General principles - Use of language in court proceedings - The Supreme Court of Canada held that the British Columbia legislature had exercised its power to regulate the language to be used in court proceedings in that province by adopting two different legislative provisions which required civil proceedings, including exhibits attached to affidavits filed as part of those proceedings, to be in English, namely the Proceedings in the Courts of Justice Act, 1731 (U.K.), 4 Geo. II, c. 26 and rule 22-3 of the Supreme Court Civil Rules (B.C.) - The court held that it would be open to the British Columbia legislature to enact legislation to authorize civil proceedings in French - Such legislation would no doubt further the values embodied in s. 16(3) of the Charter, which protected legislative initiatives which were intended to increase the equality of the official languages but did not, as the court had already held, confer any rights - However, given the absence of any such initiative by the British Columbia legislature, it was not possible for the court to impose one on it - See paragraphs 55 to 57.

Civil Rights - Topic 2702

Language - General principles - Use of language in court proceedings - Rule 22-3(2) of the Supreme Court Rules (B.C.) provided that: "Unless the nature of the document renders it impracticable, every document prepared for use in the court must be in the English language, legibly printed, typewritten, written or reproduced on 8 1/2 inch x 11 inch durable white paper or durable off-white recycled paper" - The Supreme Court of Canada rejected the appellant's argument that the exhibits attached to the affidavits were not "prepared for use in court" because they were prepared in the usual course of their business - The court stated that "... [O]nce the exhibits were attached to the affidavits, they became part of a document prepared for use in court. It cannot be possible to circumvent the rule by moving information on which a party seeks to rely from the body of the affidavit into an exhibit. If the appellants wish to rely on the content of the exhibits, as opposed to their existence or their authenticity, the exhibits must comply with the rule, since an exhibit that is relied upon for its content is effectively incorporated into the affidavit. ... [T]he impracticability exception was intended to apply to items such as photographs, films, receipt books or business ledgers, to which the formatting requirements cannot logically apply." - See paragraphs 58 to 63.

Civil Rights - Topic 2702

Language - General principles - Use of language in court proceedings - Section 2 of the Law and Equity Act, R.S.B.C. 1996, c. 253, provided that "the Civil and Criminal Laws of England, as they existed on November 19, 1858, so far as they are not from local circumstances inapplicable, are in force in British Columbia" - The parties agreed that the Proceedings in the Courts of Justice Act, 1731 (U.K.) ("1731 Act") existed and was in force in England on November 19, 1858 - However, they disagreed on whether the 1731 Act was "from local circumstances inapplicable" - The appellants took the position that a strict test for applicability should be adopted according to which every received statute had to be both necessary and applicable - They also argued that applicability should be assessed as of the time when the facts of the case arose, rather than the date of reception (November 19, 1858) - The Supreme Court of Canada rejected both submissions - The court stated that "Necessity is not a requirement for the reception of English law. Certainty in the legal system is, as the appellants acknowledge, a desirable outcome, but certainty cannot be obtained if the status of received law must be reconsidered each and every time a party seeks to rely on it. ... [T]he test for determining whether such law is applicable should be based on its suitability, and ... this should be assessed as of the date of reception." - It was therefore irrelevant that the problems that the 1731 Act was meant to address (the use of archaic languages in court proceedings) never existed in British Columbia - Nothing about the circumstances in the province as of November 19, 1858 would have made a rule requiring that court proceedings be conducted in English unsuitable - See paragraphs 27 to 41.

Civil Rights - Topic 2721

Language - Court proceedings - General - [See all Civil Rights - Topic 2702 ].

Civil Rights - Topic 8484

Charter - Interpretation - Language rights - [See third Civil Rights - Topic 2702 ].

Courts - Topic 164

Reception of English law - British Columbia - [See fifth Civil Rights - Topic 2702 ].

Evidence - Topic 1

General and definitions - General - The Supreme Court of Canada discussed the meaning of the word "proceedings" contained in the preamble to Proceedings in the Courts of Justice Act, 1731 (U.K.), 4 Geo. II, c. 26 - The court held that "It is clear from the words of the 1731 Act that it applies to a specific set of listed documents, but also to all 'proceedings', which includes the admission of evidence." - The court rejected the appellants' submission that the ejusdem generis rule applied to effect a contrary result - See paragraphs 18 to 26.

Evidence - Topic 540

Presentation of evidence - Exhibits - General - [See fourth Civil Rights - Topic 2702 ].

Evidence - Topic 3191

Documentary evidence - Translations - General - [See first Civil Rights - Topic 2702 ]. Practice - Topic 5

General principles and definitions - Nature and interpretation of practice rules - The Supreme Court of Canada accepted the appellants' submission that British Columbia's rules of court were considered to have the force of statute law - See paragraph 50.

Practice - Topic 7028.9

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Constitutional issues (incl. Charter) - [See first Civil Rights - Topic 2702 ].

Practice - Topic 7029

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Novel or important point - [See first Civil Rights - Topic 2702 ].

Practice - Topic 7035.1

Costs - Party and party costs - Entitlement to - Against the Crown or governmental bodies - [See first Civil Rights - Topic 2702 ].

Practice - Topic 7040

Costs - Party and party costs - Entitlement to - Unsuccessful party - [See first Civil Rights - Topic 2702 ].

Practice - Topic 8331

Costs - Appeals - Costs of appeal - Novel or important questions - [See first Civil Rights - Topic 2702 ].

Practice - Topic 8336

Costs - Appeals - Costs of appeal - Payable by Crown - [See first Civil Rights - Topic 2702 ].

Statutes - Topic 2582

Interpretation - Interpretation of words and phrases - Ejusdem generis rule - Cases when rule inapplicable - [See Evidence - Topic 1 ].

Statutes - Topic 6226

Operation and effect - Effect on earlier statutes - Implied repeals - General - [See second Civil Rights - Topic 2702 ].

Statutes - Topic 6910

Operation and effect - Commencement, duration and repeal - Repeal - By implication - [See second Civil Rights - Topic 2702 ].

Words and Phrases

Impracticable - The Supreme Court of Canada interpreted the meaning of this word as found in rule 22-3(2) of the Rules of Court (B.C.), Supreme Court Rules - See paragraph 61.

Words and Phrases

Prepared for use in court - The Supreme Court of Canada discussed the meaning of this phrase as used in rule 22-3(2) of the Supreme Court Rules (B.C.) - See paragraphs 58 to 60.

Words and Phrases

Proceedings - The Supreme Court of Canada interpreted the meaning of this word as found in the preamble to Proceedings in the Courts of Justice Act, 1731 (U.K.), 4 Geo. II, c. 26 - See paragraphs 18 to 26.

Cases Noticed:

R. v. Keller, [1966] 2 C.C.C. 380 (B.C.S.C.), refd to. [para. 7].

R. v. Watts, ex parte Poulin (1968), 69 D.L.R.(2d) 526 (B.C.S.C.), affd. [1969] 3 C.C.C. 118 (B.C.C.A.), refd to. [para. 7].

R. v. Lajoie (1970), 2 C.C.C.(2d) 89 (B.C.S.C.), refd to. [para. 7].

R. v. Pelletier (R.), [2002] B.C.T.C. 561; 2002 BCSC 561, refd to. [para. 7].

Mercure v. Saskatchewan, [1988] 1 S.C.R. 234; 83 N.R. 81; 65 Sask.R. 1, refd to. [para. 10].

Uniacke v. Dickson (1848), 1 N.S.R. 287 (Ch.), refd to. [para. 15].

Scott v. Scott (1970), 2 N.B.R.(2d) 849 (C.A.), refd to. [para. 15].

McDonnell v. Fédération des Franco-Colombiens (1985), 69 B.C.L.R. 87 (Co. Ct.), refd to. [para. 31].

Deeks Sand & Gravel Co. v. R., [1953] 4 D.L.R. 255 (B.C.S.C.), refd to. [para. 31].

Hellens v. Densmore, [1957] S.C.R. 768, refd to. [para. 31].

Cooper v. Stuart, [1889] U.K.P.C. 1; 14 App. Cas. 286, refd to. [para. 37].

Sheppard v. Sheppard (1908), 13 B.C.R. 486 (S.C.), refd to. [para. 38].

MacKenzie and McKenzie, Re (1970), 11 D.L.R.(3d) 302 (B.C.C.A.), refd to. [para. 38].

Robitaille v. Vancouver Hockey Club Ltd. (1979), 13 B.C.L.R. 309 (S.C.), refd to. [para. 50].

Boleak v. Boleak (1999), 133 B.C.A.C. 169; 217 W.A.C. 169; 183 D.L.R.(4th) 152; 1999 BCCA 776, refd to. [para. 50].

R. v. Pare (1986), 31 C.C.C.(3d) 260 (B.C.S.C.), refd to. [para. 52].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, refd to. [para. 55].

R. v. Zundel (No. 2), [1992] 2 S.C.R. 731; 140 N.R. 1; 56 O.A.C. 161, refd to. [para. 55].

R. v. National Post et al., [2010] 1 S.C.R. 477; 401 N.R. 104; 262 O.A.C. 1; 2010 SCC 16, refd to. [para. 55].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 55].

Han et al. v. Cho et al., [2008] B.C.T.C. Uned. 820; 88 B.C.L.R.(4th) 193; 2008 BCSC 1208, refd to. [para. 60].

Bilfinger Berger (Canada) Inc. et al. v. Greater Vancouver Water District et al., [2010] B.C.T.C. Uned. 1104; 2010 BCSC 1104, refd to. [para. 60].

R. v. Caron (G.), [2011] 1 S.C.R. 78; 411 N.R. 89; 499 A.R. 309; 514 W.A.C. 309; 2011 SCC 5, refd to. [paras. 63, 72].

R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201, refd to. [para. 84].

Conseil Scolaire Francophone de la Colombie-Britannique et al. v. British Columbia et al. (2012), 323 B.C.A.C. 270; 550 W.A.C. 270; 34 B.C.L.R.(5th) 35; 2012 BCCA 282, refd to. [para. 87].

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, refd to. [para. 96].

Coles and Ravenshear, In Re, [1907] 1 K.B. 1 (C.A.), refd to. [para. 100].

Mahe, Martel, Dubé and Association d'Ecole Georges et Julia Bugnet v. Alberta, [1990] 1 S.C.R. 342; 105 N.R. 321; 106 A.R. 321, refd to. [para. 108].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 16(3) [para. 56].

Court of Appeal Rules (B.C.) - see Rules of Court (B.C.), Court of Appeal Rules.

Law and Equity Act, R.S.B.C. 1996, c. 253, sect. 2 [para. 16].

Proceedings in the Courts of Justice Act, 1731 (U.K.), 4 Geo. II, c. 26, generally [para. 7].

Rules of Court (B.C.), Court of Appeal Rules, rule 53 [para. 48].

Rules of Court (B.C.), Supreme Court Rules, rule 22-3 [para. 48]; rule 22-3(2) [paras. 58, 92]; rule 22-3(3) [para. 92].

Supreme Court Rules (B.C.) - see Rules of Court (B.C.), Supreme Court Rules.

Authors and Works Noticed:

Blackstone, William, Commentaries on the Laws of England (1826), vol. 3, pp. 271, 272, 349 to 385 [para. 21].

Blickensderfer, Ulric, Blickensderfer's Blackstone's Elements of Law Etc. (1889), pp. 220, 221 [para. 19].

Bouck, John C., Introducing English Statute Law into the Provinces: Time for a Change? (1957), 57 Can. Bar. Rev. 74, pp. 76, 77 [para. 36].

British Columbia, Hansard, Debates of the Legislative Assembly, 2nd Sess., 29th Parliament (March 29, 1971), pp. 645, 646 [para. 53].

Cote, John E., The Reception of English Law (1977), 15 Alta. Law Rev. 29, pp. 30 [para. 14]; 35 [para. 15]; 91 [para. 76].

Hansard (B.C.) - see British Columbia, Hansard, Debates of the Legislative Assembly.

Hogg, Peter W., Constitutional Law of Canada (2012), ss. 2.2(b) [para. 34]; 2.5(c) [para. 76]; 2.6 [para. 80].

Jacob, I.H., The Inherent Jurisdiction of the Court (1970), 23 Current Legal Problems 23, pp. 24 [para. 74]; 25 [para. 73]; 27 [para. 72]; 28 [paras. 72, 104]; 50 [para. 103]; 51 [paras. 72, 103].

McPherson, Bruce Harvey, The Reception of English Law Abroad (2007), pp. 373, 374 [para. 34]; 378 [para. 32].

Sullivan, Ruth, Sullivan on the Construction of Statutes (5th Ed. 2008), p. 239 [para. 23].

Counsel:

Robert Grant, Mark C. Power, Jennifer Klinck and Jean-Pierre Hachey, for the appellants;

Jonathan G. Penner and Karrie Wolfe, for the respondents;

Josh Hunter, for the intervener, the Attorney General of Ontario;

Christine Ruest Norrena and Isabelle Bousquet, for the intervener, the Commissioner of Official Languages of Canada;

Francis Lamer and Casey Leggett, for the intervener, Association des juristes d'expression française de la Colombie-Britannique.

Solicitors of Record:

Heenan Blaikie, Ottawa, Ontario, for the appellants;

Attorney General of British Columbia, Victoria, British Columbia, for the respondents;

Attorney General of Ontario, Toronto, Ontario, for the intervener, the Attorney General of Ontario;

Office of the Commissioner of Official Languages, Ottawa, Ontario, for the intervener,

the Commissioner of Official Languages of Canada;

Shapray, Cramer & Associates, Vancouver, British Columbia; Martin & Associates, Vancouver, British Columbia, for the intervener Association des juristes d'expression française de la Colombie-Britannique.

This appeal was heard on April 15, 2013, by McLachlin, C.J.C., LeBel, Abella, Rothstein, Moldaver, Karakatsanis and Wagner, JJ., of the Supreme Court of Canada. On July 26, 2013, the court delivered the following decision, in both official languages, which was comprised of the following opinions:

Wagner, J. (McLachlin, C.J.C., Rothstein and Moldaver, JJ., concurring) - see paragraphs 1 to 65;

Karakatsanis, J., dissenting (LeBel and Abella, JJ., concurring) - see paragraphs 66 to 114.