Kilrich Industries Ltd. v. Halotier, (2007) 246 B.C.A.C. 159 (YukCA)

• Judge: Finch, C.J.Y.T., Vertes and Huddart, JJ.A.
• Court: Court of Appeal (Yukon Territory)
• Case Date: June 01, 2007
• Jurisdiction: Yukon
• Citations: (2007), 246 B.C.A.C. 159 (YukCA);2007 YKCA 12

Kilrich Ind. Ltd. v. Halotier (2007), 246 B.C.A.C. 159 (YukCA);

    406 W.A.C. 159

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: [2007] B.C.A.C. TBEd. SE.029

Kilrich Industries Ltd. (respondent/plaintiff) v. Henri Halotier (appellant/defendant) and Minister of Justice (intervenor)

(YU525; 2007 YKCA 12)

Indexed As: Kilrich Industries Ltd. v. Halotier

Yukon Court of Appeal

Finch, C.J.Y.T., Vertes and Huddart, JJ.A.

September 18, 2007.

Summary:

The Yukon Supreme Court allowed the plaintiff's action in debt following a summary trial. The defendant appealed, arguing that he did not have a fair opportunity to present a defence because the Rules of Court (YK) were not available to him in French, contrary to ss. 4 and 5 of the Languages Act (YK). He said that he was unable to speak French and be understood by the presiding judge, and that when he finally came to understand the procedure at the summary trial, he was not permitted an adjournment to obtain legal advice, despite the fact that he had not filed the required materials in response to the plaintiff's application for summary judgment.

The Yukon Court of Appeal allowed the appeal and ordered a new trial. The court declared the Rules of Court of no force and effect but suspended the operation of this declaration for 12 months to enable the Yukon Supreme Court and Government to comply with the bilingual publication requirements of ss. 4 and 13 of the Languages Act (YK). The court declined the defendant's request that his new trial not be held until the proposed new, bilingually published, Rules of Court came into force. Instead the court ordered the Yukon Government to pay for the services of a qualified interpreter who could assist the defendant either directly or through an English-speaking lawyer to understand the Rules of Court so as to permit him to defend himself. This remedy would acknowledge the continuing validity of the Rules of Court pending their publication in French, as well as ensuring that neither the defendant nor the plaintiff would suffer from further delay. The court ordered the Yukon Minister of Justice to pay the parties' special costs for the trial and the appeal.

Civil Rights - Topic 2702

Language - General principles - Use of language in court proceedings - Section 5 of the Languages Act (YK) provided that either English or French could be used by any person in, or in any pleading in or process issuing from any court established by the Legislative Assembly - The Yukon Court of Appeal held that the right to file documents with the registry in French and the right to use French in communicating orally or in writing with the registry flowed naturally from s. 5 - When proceedings were required by law to be recorded, a person using either French or English had the right to have their words recorded in that language - It follows that any transcript of such a proceeding should include testimony in the language (if French or English) in which it was given - However, the court was not persuaded that s. 5 imposed an obligation to provide a bilingual judge, clerk or officer of the court, or an interpreter - Nor did s. 5 require the Senior Judge, in the alternative, to assign a judge who spoke and understood French to preside at a trial where a litigant wished to speak in French - See paragraphs 71 to 87.

Civil Rights - Topic 2702

Language - General principles - Use of language in court proceedings - [See second Civil Rights - Topic 2763 ].

Civil Rights - Topic 2703

Language - General principles - Interpretation of language rights legislation - The Yukon Court of Appeal held that its task was to interpret the Languages Act (YK) taking a broad and purposive approach, but in the unique context of the Yukon and without disregarding the ordinary rules of statutory interpretation - See paragraphs 39 to 54.

Civil Rights - Topic 2711

Language - General principles - Institution of the Legislative Assembly and government of the Yukon - Section 6 of the Languages Act (YK) provided that any member of the public had the right to communicate with, and to receive available services from, any head or central office of an institution of the Legislative Assembly of the Yukon in English or French - The Yukon Court of Appeal held that the Yukon Supreme Court fell within the meaning of the word "institution", as it was an organized body established by the Yukon Legislative Assembly - See paragraphs 88 to 95.

Civil Rights - Topic 2763

Language - Bilingual legislation including translation of statutes - Acts and regulations of the Yukon - Section 4 of the Languages Act (YK) required bilingual publication of acts and regulations - The Yukon Court of Appeal held that all enactments, including delegated legislation, had to be published in both English and French - This included the rules of court made by judges - The court added that the Yukon Rules of Court had to be published in both English and French and that they included the forms prescribed by the Rules and all practice directives issued by the judges of the Supreme Court - See paragraphs 55 to 70.

Civil Rights - Topic 2763

Language - Bilingual legislation including translation of statutes - Acts and regulations of the Yukon - The Yukon Supreme Court allowed the plaintiff's action in debt following a summary trial - The defendant appealed, arguing that he did not have a fair opportunity to present a defence because the Rules of Court (YK) were not available to him in French, contrary to ss. 4 and 5 of the Languages Act (YK) - The Yukon Court of Appeal allowed the appeal and ordered a new trial - Without the ability to obtain a complete and current copy of the Rules of Court in French, the defendant could not effectively exercise the right granted to him by s. 5 and use French throughout this proceeding, in pleadings, at the settlement conference, and at the summary trial - Although the remedy of a new trial typically followed from a breach of procedural fairness, it was appropriate in light of the overall circumstances of this case and the language of s. 9 of the Act - See paragraphs 96 to 105.

Civil Rights - Topic 7108

Federal, provincial or territorial legislation - Practice - Costs - The Yukon Supreme Court allowed the plaintiff's action in debt following a summary trial - The defendant appealed, arguing that he did not have a fair opportunity to present a defence because the Rules of Court (YK) were not available to him in French, contrary to ss. 4 and 5 of the Languages Act (YK) - The Yukon Court of Appeal allowed the appeal and ordered a new trial - The court ordered the Yukon Minister of Justice to pay the parties' special costs for the trial and the appeal where the events here constituted a systemic failure by the judicial system to both parties - See paragraphs 103 and 104.

Practice - Topic 7468

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Against the Crown or governmental bodies - [See Civil Rights - Topic 7108 ].

Words and Phrases

Institution - The Yukon Court of Appeal discussed the meaning of the word "institution" found in s. 6 of the Languages Act, R.S.Y. 2002, c. 133 - See paragraphs 88 to 95.

Cases Noticed:

Fédération Franco-Ténoise et al. v. Canada (Attorney General) et al., [2006] Northwest Terr. Cases 20; 2006 NWTSC 20, consd. [para. 22].

Mercure v. Saskatchewan, [1988] 1 S.C.R. 234; 83 N.R. 81; 65 Sask.R. 1, consd. [para. 22].

R. v. Mercure - see Mercure v. Saskatchewan.

R. v. St. Jean (1986), 2 Y.R. 116 (S.C.), consd. [para. 28].

R. v. Beaulac (J.V.), [1999] 1 S.C.R. 768; 238 N.R. 131; 121 B.C.A.C. 227; 198 W.A.C. 227, consd. [para. 40].

Montreal (City) v. MacDonald, [1986] 1 S.C.R. 460; 67 N.R. 1, consd. [para. 40].

Société des Acadiens du Nouveau-Brunswick Inc. et al. v. Minority Language School Board No. 50 and Association of Parents for Fairness in Education, Grand Falls District 50 Branch, [1986] 1 S.C.R. 549; 66 N.R. 173; 69 N.B.R.(2d) 271; 177 A.P.R. 271, consd. [para. 40].

Bilodeau v. Manitoba (Attorney General), [1986] 1 S.C.R. 449; 67 N.R. 108; 42 Man.R.(2d) 242, consd. [para. 40].

Official Languages Act, Re, [1975] 2 S.C.R. 182; 1 N.R. 582; 7 N.B.R.(2d) 526, consd. [para. 44].

Jones v. New Brunswick (Attorney General) - see Official Languages Act, Re.

Blaikie v. Quebec (Attorney General) et al., [1979] 2 S.C.R. 1016; 30 N.R. 225, consd. [para. 44].

Blaikie et al. v. Quebec (Attorney General) et al., [1981] 1 S.C.R. 312; 36 N.R. 120, consd. [para. 44].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, consd. [para. 44].

Arsenault-Cameron et al. v. Prince Edward Island, [2000] 1 S.C.R. 3; 249 N.R. 140; 184 Nfld. & P.E.I.R. 44; 559 A.P.R. 44, consd. [para. 45].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, consd. [para. 46].

Reference Re Constitutional Question Act (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241, refd to. [para. 47].

Reference Re Canada Assistance Plan (B.C.) - see Reference Re Constitutional Question Act (B.C.).

Lavigne v. Commissioner of Official Languages (Can.) et al., [2002] 2 S.C.R. 773; 289 N.R. 282, refd to. [para. 47].

Charlebois v. Saint John (City), [2005] 3 S.C.R. 563; 342 N.R. 203; 292 N.B.R.(2d) 1; 761 A.P.R. 1, refd to. [para. 47].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1, consd. [para. 51].

Quebec Association of Protestant School Boards et al. v. Quebec (Attorney General) et al., [1984] 2 S.C.R. 66; 54 N.R. 196, refd to. [para. 54].

Reference Re Public Schools Act (Man.), [1993] 1 S.C.R. 839; 149 N.R. 241; 83 Man.R.(2d) 241; 36 W.A.C. 241, refd to. [para. 54].

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. 54].

Doucet-Boudreau et al. v. Nova Scotia (Minister of Education) et al., [2003] 3 S.C.R. 3; 312 N.R. 1; 218 N.S.R.(2d) 311; 687 A.P.R. 311, refd to. [para. 54].

Manitoba Language Rights Reference (No. 2), [1992] 1 S.C.R. 212; 133 N.R. 88; 76 Man.R.(2d) 124; 10 W.A.C. 124, refd to. [para. 68].

Lalonde et al. v. Commission de restructuration des services de santé (Ont.) (2001), 153 O.A.C. 1; 56 O.R.(3d) 505 (C.A.), refd to. [para. 84].

MacKeigan, J.A., et al. v. Royal Commission (Marshall Inquiry), [1989] 2 S.C.R. 796; 100 N.R. 81; 94 N.S.R.(2d) 1; 247 A.P.R. 1, refd to. [para. 86].

MacKeigan v. Hickman - see MacKeigan, J.A., et al. v. Royal Commission (Marshall Inquiry).

R. v. Valente, [1985] 2 S.C.R. 673; 64 N.R. 1; 14 O.A.C. 79, refd to. [para. 86].

Reference Re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3; 217 N.R. 1; 206 A.R. 1; 156 W.A.C. 1; 121 Man.R.(2d) 1; 158 W.A.C. 1; 156 Nfld. & P.E.I.R. 1; 483 A.P.R. 1, refd to. [para. 86].

Provincial Judges Reference - see Reference Re Remuneration of Judges of the Provincial Court (P.E.I.).

Statutes Noticed:

Judicature Act, R.S.Y. 2002, c. 128, sect. 38 [para. 58].

Languages Act, R.S.Y. 2002, c. 133, sect. 1 [para. 33], sect. 4 [para. 34]; sect. 5 [para. 35], sect. 6 [para. 36]; sect. 9 [para. 37]; sect. 13(1) [para. 38].

Counsel:

R.J.F. Lepage, for the appellant;

S.L. Dumont, for the respondent;

P. Gawn and M. Gelinas, for the intervenor, Minister of Justice.

This appeal was heard at Whitehorse, Yukon, on June 1, 2007, by Finch, C.J.Y.T., Vertes and Huddart, JJ.A., of the Yukon Court of Appeal. The following decision of the Court of Appeal was delivered at Vancouver, B.C., by Huddart, J.A., on September 18, 2007.