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Small Claims Court (Ontario) Law
(01 January 2015)

Chapter 5 - Language of Proceedings

  1. Overview
  2. English Proceedings
    (a) Overview
    (b) Evidence in Language Other than English
  3. Bilingual French-English Proceedings
    (a) Overview
    (b) Judge
    (c) Oral Translation
    (d) Use of French Pleadings and Documents
    (e) Out-of-Court Examinations
    (f) Reasons for Decision
    (g) How to Require a Bilingual Proceeding
    . Overview
    . First Documents in French
    . Requisition: Written or Oral
    . Withdrawing the Requirement
    (h) Evidence in Language Other than French or English
  4. Bilingual Appeals
________________________________________

1. Overview

While both English and French are the "official languages" of the Ontario courts, the default language of the courts is English [CJA s.125(1)(2)].

A party may require a bilingual French-English proceeding, though such proceedings are not necessarily conducted entirely in French as they will accomodate English-only speakers as well.

Evidence in any language other than English or French must be translated to English or French.

The language provisions discussed below apply to corporations, partnerships and sole proprietorships parties as well as "natural persons", unless the court orders otherwise [CJA s.126(8)].


2. English Proceedings

(a) Overview

Where no bilingual proceeding has been required, the hearing shall be conducted in English [CJA s.125]. The following rules apply to English language proceedings.

(b) Evidence in Language Other than English

In English proceedings, any non-English testimony (including French) must be translated into English, and documents filed in a non-English language (including French) must be accompanied by a translation into English certified by affidavit of the translator [CJA s.125(2)].

Subject to local availability, French and American Sign Language (ASL) translation services will be provided by the court at no charge.

When evidence (ie. testimony) translation is required to English from any other language (ie. not French or ASL), the party calling the witness must provide a qualified interpreter at their own expense [RCP R53.01; R18.03(5.1)]. The only exception is that presently the Attorney-General has a free program for non-English, non-French interpretation in Small Claims court for poor persons who qualify for "court fee waivers" (see Ch.18: "Court Fees").

Failure to meet this duty to provide interpretation services entitles "every other party to request an adjournment of the trial, with costs" [R18.03(5.2)].

Parties, counsel and - generally - family and friends will not be accepted as proper interpreters. Interpreters should be professional, and may be drawn from a list maintained by the court of accredited interpreters.

French documents may be filed in an English proceeding, and the court - on request -will provide for their translation into English [CJA 126(4)(6)].


3. Bilingual French-English Proceedings

(a) Overview

Any French-speaking party may require a "bilingual proceeding" [CJA s.126(1).]However such a proceeding is not an all-French proceeding, as it also allows and facilitates the use of English by unilingual English speakers.

The following rules applies to bilingual proceedings.

(b) Judge

The judge or presiding court officer shall be bilingual [CJA s.126(2)(1)].

(c) Oral Translation

Where a unilingual party or counsel requires translation of any oral evidence or submissions, the court shall provide it [CJA 126(2)(9)].

Where the judge or presiding court officer is of the opinion that it can be done, any other part of the proceeding may be conducted in French [CJA s.126(2)(4).

Evidence given and submissions made in English or French shall be received, recorded and transcribed in the language in which they are given [CJA s.126(2)(3)]. Unless the court orders otherwise, where interpretation is required, the interpretation itself shall not be included in any transcript of oral evidence given at a hearing [Reg 53/01, s.11].

(d) Use of French Pleadings and Documents

A party wishing to file pleadings and other documents in French may do so anywhere in Ontario, on filing the written consent of all the other parties to that effect [CJA s.126(2)7, Reg 53/01, s.5.1,8.1 (Note: these Reg 53/01 provisions appear to be duplicative).

In the following municipalities and territorial districts, a party has the right to file pleadings and other documents in French - without the consent of the other party. [CJA s.126(2)(6)][Schedule 2]

Municipalities:
County of Middlesex
County of Essex
County of Prescott and Russell
County of Renfrew
County of Simcoe
County of Stormont, Dundas and Glengarry
County of Welland (as it existed on December
31, 1969)
Municipality of Chatham Kent
City of Hamilton
City of Ottawa
Regional Municipality of Peel
City of Greater Sudbury
City of Toronto

Territorial Districts of:

Algoma
Cochrane
Kenora
Nipissing
Sudbury
Thunder Bay
Timiskaming

On request of a party, the court will provide translation of a document written in French to English [CJA 126(6)].

The above, which in some locations (ie. the ones not listed) requires consent of the other parties for the filing of French documents and pleadings, seems inconsistent with the right to bilingual proceedings. The scheme can be reconciled if it is interpreted to mean that, absent consent, the party wishing to file documents in French must arrange for the filing of English translated documents and pleadings.

(e) Out-of-Court Examinations

Out-of-court examinations (ie. "discovery" and cross-examination on affidavits) are not a right under the Small Claims Rules, but they may nonetheless be conducted if the parties consent. Such examinations are normally held before private "examiners" or "reporting services" who record and transcribe the questions and answers given.

French or English transcripts of oral evidence taken out-of-court shall be transcribed in the language in which they were given [CJA s.126(2)(5). Unless the court orders otherwise, where interpretation is required, the interpretation itself shall not be included in any transcript of oral evidence given at an out-of-court examination [Reg 53/01, s.11].

Where a unilingual party or counsel requires interpretation at an out-of-court examination (ie. the session itself), the court shall provide it [CJA 126(2)(9)].

A party who arranges an out-of-court oral examination shall at that time give written notice to the examiner that [Reg 53/01, s.10]:
  • the examination is being conducted for a bilingual French-English proceeding and shall be received, recorded and transcribed in the language in which it is given;

  • the person before whom the examination is held shall be bilingual French-English; and

  • the person before whom the examination is held shall ensure that an interpreter who speaks English and French is available for the examination.
(f) Reasons for Decision

The reasons for a decision may be written in English or French [CJA s.126(2)(8)]. Where a unilingual party or counsel requires translation of reasons for a decision, the court shall provide it [CJA 126(2)(9)].

(g) How to Require a Bilingual Proceeding

. Overview

A party may require a bilingual proceeding in three ways: (1) by either filing the party's first documents (or having them issued) in French, (2) filing with the court a written requisition or request to this effect, or (3) requesting such orally at a court appearance. A party may also withdraw the requirement of a bilingual proceeding. [Reg 53/01]

. First Documents in French

By filing or issuing (where the document is issued by the court) their first documentation in a proceeding in French, the party is deemed to require that the proceeding be conducted as a bilingual proceeding. [Reg 53/01, s.3(1)] However, where the filing or issuance is less than seven days before a hearing, the hearing will not be conducted bilingually unless the court - on motion - so orders [Reg 53/01, s.3(2)(3)].

. Requisition: Written or Oral

Subject to the time limits discussed below, a party may simply request a bilingual proceeding orally at a court appearance, or may require a bilingual proceeding by filing with the clerk a "requisition" or "a written statement that is separate from any other document in the proceeding and that expresses a desire that the proceeding be conducted as a bilingual proceeding". [Reg 53/01, s.5(1)]

Form 1: Bilingual Proceedings Requisition

A written requisition or request shall specify that all or some (and in that case, which) of the future hearings shall be conducted by a bilingual judge or presiding court officer; [Reg 53/01, s.5(2)].

Except with the court's permission, obtained on motion [Reg 53/01, s.5(7)], a requisition or oral request for a bilingual proceedings shall be filed (or made):
  • at least seven days before the hearing to which it first applies [Reg 53/01, s.5(3)].

  • in any event, before the Notice of Trial is sent (see chapter: "Trial") [Reg 53/01, s.5(4)]
Such a written requisition or written request shall forthwith be served on the other parties by the party making the requisition or request [Reg 53/01, s.5(8)] (see Ch.6: "Service of Documents").

. Withdrawing the Requirement

A requirement for a bilingual proceeding, however made, may only be withdrawn by filing, at the earliest oppourtunity, the written consent of ALL parties to this effect, or with permission of the court. [Reg 53/01, s.6]

(h) Evidence in Language Other than French or English

In a bilingual proceeding, where a witness speaks neither English or French, they shall be questioned in either English or French as "the judge determines is understood by all counsel". The questions will be translated to the witness from English/French to the language of the witness. Where a party does not understand the language in which the witness is being questioned and the interpreted answers (ie. English or French), the court shall provide interpretation for that party only into English or French, as required. [Reg 53/01, s.13]

In Bilingual proceedings - and subject to locally available free government interpretation programs - an interpreter from any non-English and non-French language (excepting American Sign Language) must be provided by the party calling the evidence and at their expense [RCP R53.01; R18.03(5.1)]. The only exception is that presently the A-G has a free program for non-English/non-French interpretation in Small Claims court for persons who qualify for "court fee waivers" (see Chapter: "Court Fees"). Contact your court for details, and give them plenty of advance warning of the need for interpretation.

Failure to meet the duty to provide interpretation services entitles "every other party to request an adjournment of the trial, with costs" [R18.03(5.2)].

Parties, counsel and - generally - family and friends will not be accepted as proper interpreters. Interpreters should be professional, and may be drawn from a list maintained by the court of accredited interpreters.

Similarly, documents filed in a language other than English or French shall be accompanied by a translation certified by affidavit of the translator, the cost of which is born by the party calling the evidence [CJA s.125(2)].


4. Bilingual Appeals

Where a trial was conducted as a bilingual proceeding, any French-speaking party may require that an appeal from the trial be heard by bilingual French-English judge/s. Such an appeal shall be conducted under the same rules as a bilingual trial, with any necessary modifications [CJA 126(3)].

If a party to an appeal files their first document in French, they shall be deemed to have required the appeal be heard by bilingual judge/s. However if such document is filed less than seven days before the appeal hearing, this rule does not apply unless the court, on motion, so orders. [Reg 53/01, s.7]

A party to an appeal may also require the appeal to be heard before bilingual judge/s if they file a written requisition to that effect with the court clerk.

Form 2: Bilingual Proceeding Requisition - Appeals

An appellant must file this requisition when the Notice of Appeal is filed. A respondent must file it within within 10 days after the Notice of Appeal is served. [Reg 53/01, s.8(1)]. On motion, the court may allow late filing of this requisition [Reg 53/01, 8(2)].

The party filing the requisition must forthwith serve it on all other parties [Reg 53/01, s.8(3)] (see chapter: "Service").

A requirement for a bilingual appeal, however made, may only be withdrawn by filing, at the earliest oppourtunity, the written consent of ALL parties to this effect, or with permission of the court. [Reg 53/01, s.9]
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