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Language - Bilingualism. Poonian v. British Columbia (Securities Commission)
In Poonian v. British Columbia (Securities Commission) (SCC, 2024) the Supreme Court of Canada dismissed an appeal against a tribunal order that held "disgorgement orders and the administrative penalties" exempt from bankruptcy discharge, here under BIA s.178(1)(e) ['fraud'].
Here the court cites doctrine on the statutory interpretation of bilingual text:[37] The English and French versions of s. 178(1)(a) are slightly different. Importantly, the words “in respect of an offence” in the English version are absent from the French version. “The shared meaning rule for the interpretation of bilingual legislation dictates that the common meaning between the English and French legislative texts should be accepted” (Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23, at para. 203, citing R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at pp. 99 et seq., and M. Bastarache et al., The Law of Bilingual Interpretation (2008), at pp. 32 et seq.). The shared meaning rule points to a broader reading of s. 178(1)(a) that encompasses any fine, penalty, restitution order or other order that is imposed by a court. Under this interpretation, there is no indication that such an order needs to be imposed in a criminal or quasi‑criminal context. . London (City) v. Canadian Union of Public Employees, Local 101
In London (City) v. Canadian Union of Public Employees, Local 101 (Div Court, 2024) the Divisional Court considers a labour JR where the applicant City challenges an arbitrator's finding regarding paid holiday.
Here the court considered whether "the Arbitrator failed to accurately state and apply the established test for interpretation of bilingual statutory instruments to the Proclamation issued 13 September 2022?":[17] The Arbitrator found that the parties, in a clear and unambiguous way, delegated to the Government of Canada the power to add holidays to the Collective Agreement by incorporating a reference to s. 42(a)(iii) of the BEA. Further, the Arbitrator was satisfied that the Proclamation of 19 September 2022 was a day of general mourning throughout Canada within s. 42(a)(iii) of the BEA. To support this conclusion, the Arbitrator relied on the French text of the Proclamation, which he found was “narrower or more specific”. While the English version of the Order in Council and Proclamation lacked the word ‘mourning’, the French language version of both contained the word “deuil” which is also found in the French version of s. 42(a)(iii) of the BEA.
....
[41] The City submits that the Arbitrator provided no analysis of his interpretation of the meaning of the applicable words in Article 11.1, in the Proclamation, or in s. 42(a)(iii) of the BEA [SS: the federal 'Bills of Exchange Act'].
[42] The City relies on the two-step process for statutory interpretation of bi-lingual statutes set out in R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217, at paras. 27-30:
1) Determine whether there is an irreconcilable difference between the two versions off the statue. If there is, then:
2) Determine whether the common or dominant meaning is, according to the ordinary rules of statutory interpretation, consistent with Parliament’s intent.
[43] In determining whether there is discordance for the first part of the Daoust test, the court must use a purposive and contextual approach, the steps for which are:1) If one version is ambiguous, but the other is not, the meaning that is common to both versions is the version that is plain and unambiguous.
2) If neither version is ambiguous, or they both are, then the common meaning is normally the narrower versions. ....
[48] This is not a case where one version of the Proclamations was ambiguous and the other, not. Rather, both versions were clear. The Arbitrator held that the French and the English versions of the Proclamation and s. 42(a)(iii), while clear, differed from each other and could not be reconciled. Therefore, the more narrow version had to be adopted. Because the French version of the Proclamation and s. 42(a)(iii) included the word “deuil” (meaning “mourning”, in English) but the English version did not include the word “mourning”, the French version was the narrower version of the Proclamation and s. 42(a)(iii) therefore applied. . R. v. Tayo Tompouba
In R. v. Tayo Tompouba (SCC, 2024) the Supreme Court of Canada allowed an appeal from a BC Court of Appeal which "erred in law by imposing on Mr. Tayo Tompouba the burden of proving, in addition to a breach of s. 530(3) Cr. C. [SS: 'Language of Accused'], that his fundamental right to be tried in the official language of his choice had in fact been violated".
Here the court discusses Charter and other constitutional language provisions:[28] This appeal relates to institutional judicial bilingualism, which ensures equal access to the courts for members of Canada’s linguistic communities (see Beaulac, at para. 28; Bessette, at para. 20). The inextricable link between institutional judicial bilingualism and the protection of linguistic minorities, as well as the importance of these two concepts, are reflected in Canada’s constitutional fabric (see Conseil scolaire francophone de la Colombie‑Britannique, at para. 12, per Wagner C.J., and at paras. 188‑89, per Brown and Rowe JJ., dissenting; J. D. Richard, “Le bilinguisme judiciaire au Canada” (2001), 42 C. de D. 389, at p. 395).
[29] First of all, the Constitution Act, 1867 sets out limited positive rights that protect the use of English and French in certain federal and Quebec institutions, including judicial institutions:133 Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.
The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages. [30] In addition, echoing s. 133 of the Constitution Act, 1867 and strengthening the constitutional protection provided to linguistic minorities across the country, ss. 16 to 20 of the Canadian Charter of Rights and Freedoms set out a series of legal guarantees that ensure institutional bilingualism at the federal level. These guarantees are not subject to the notwithstanding clause in s. 33 of the Charter (see R. J. Sharpe and K. Roach, The Charter of Rights and Freedoms (7th ed. 2021), at pp. 433‑34).
[31] In this case, it is ss. 16 and 19 of the Charter that should be focused on specifically. After stating, in the first subsection, that English and French are the official languages of Canada and that these two languages have “equality of status and equal rights and privileges as to their use in all institutions of the Parliament and government of Canada”, s. 16 specifies, in the third subsection, that Parliament and the legislatures remain free at all times “to advance the equality of status or use of English and French”. As for s. 19, it specifically guarantees, in the first subsection, the right to use either English or French in, or in any pleading in or process issuing from, any federally established court (see Sharpe and Roach, at p. 433).
[32] The combined effect of s. 133 of the Constitution Act, 1867 and s. 19(1) of the Charter is to guarantee to every person the right to speak in the official language of their choice in judicial proceedings at the federal level and in Quebec (Société des Acadiens du Nouveau‑Brunswick Inc. v. Association of Parents for Fairness in Education, 1986 CanLII 66 (SCC), [1986] 1 S.C.R. 549, at pp. 574‑75; R. v. Mercure, 1988 CanLII 107 (SCC), [1988] 1 S.C.R. 234, at p. 297‑98, per Estey J., dissenting; Hogg and Wright, at § 56:9; Sharpe and Roach, at p. 433). This guarantee is a “constitutional minimum” that can be supplemented by federal and provincial legislation in order to advance the equality of status and use of English and French by conferring additional linguistic guarantees (see s. 16(1) and (3) of the Charter; Jones v. Attorney General of New Brunswick, 1974 CanLII 164 (SCC), [1975] 2 S.C.R. 182, at pp. 192‑93; MacDonald, at p. 496; Reference re Manitoba Language Rights, 1992 CanLII 115 (SCC), [1992] 1 S.C.R. 212, at pp. 222‑23; Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2013 SCC 42, [2013] 2 S.C.R. 774, at para. 56; Sharpe and Roach, at p. 432).
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