Letter to The Lawyers Weekly

To the Editor:

As the plaintiff who saw his favorable trial judgment thrown out on a death-defying appeal -- an appeal arguing denial of language rights in overt contradiction of the defendant’s explicit consent during trial to proceed in English -- I am concerned that your report (“Francophone Wins New Small-Claims Trial,” September 10) may leave readers with an incomplete appreciation of the golden opportunity this precedent presents to thwart well founded lawsuits.

McCarthy Tétrault’s William McDowell was perhaps being overly dramatic in claiming to your reporter that allowing the Small Claims judgment to stand, despite his client’s request for a bilingual proceeding, “would significantly gut minority language rights in Ontario.” Conceivably the remark overreaches in its quest to explain McCarthy Tétrault’s involvement in the evasion of a mundane debt, recognized as “clear and unequivocal” by the trial judge, through abuse of Canada’s well-intentioned language rights.

First and foremost, McDowell’s client, restaurateur Frederic Geisweiller (owner of Toronto’s Le Sélect Bistro), voiced his consent to proceed in English during the trial in words that are quite unmistakable: “Very good, we will proceed.... All right.... Fair enough.”

One can argue, moreover, as my factum did, that Geisweiller did not in effect request a bilingual hearing at all.

Geisweiller’s pre-trial statement of defense included the sentence: “The defendant being French speaking and the plaintiff having pursued his secondary education in French, a request is made to have the case heard in French.”

This is clearly a request for a French-only hearing in which I would be obliged to participate in French -- something to which he has no right. Furthermore, the premise about my high school education is false. Further still, Geisweiller offered no follow-up when I pointed out the false premise in writing to him and the court and counter-requested a trial in English.

The only other time Geisweiller raised any language-related request to the Court was in mid-trial, after I had already given my evidence. This request too is problematic, given its timing. Can defendants really abort trials at any point by abruptly claiming language rights? But at any rate, Geisweiller agreed in this case to proceed in English when the judge responded that an adjournment would otherwise be necessary.

In light of these considerations, McCarthy Tétrault’s perverse victory seems much less a salutary affirmation of language rights than a blow against national unity, in a society that is disenchanted with lawyers who gain unjust acquittals through technicalities. (If your readers wish to verify the transparency of the substance of this case, I invite them to visit www.urielw.com/leselectbistro/.)

Before this case, we had a high-minded law, helping preserve Canadian unity by guaranteeing equal access to the courts to both our nation’s founding linguistic groups. The May 20 Supreme Court decision relating to the same issue (Beaulac v. The Queen), made so much of by McDowell in this appeal, was a principled affirmation by the Court of the right of a man charged with murder to have his request for a bilingual trial honored.

Following McCarthy Tétrault’s decision to assist my wealthy opponent in his determination to repudiate a clear debt, and McDowell’s unlikely success in simultaneously overcoming common sense and legal logic in the courtroom, we have a precedent that invites guilty defendants to taint the ideal of “language rights” in the public mind, to reduce its political defensibility, and to weaken Canada’s fragile unity.

Uriel Wittenberg
Toronto
uw@urielw.com