Francophone Wins New Small-Claims Trial

An Ontario judge has overturned a Small Claims Court judgment on grounds the appellant was denied a bilingual trial, despite his having agreed to proceed in English. The judgment follows a recent Supreme Court decision which said a trial in the language of one's choice is a substantive and not just a procedural right.

Section 126(1) of Ontario's Courts of Justice Act says "[a] party to a proceeding who speaks French has the right to require that it be conducted as a bilingual proceeding."

"In this case, the evidence is not only that the right of the defendant to a bilingual proceeding was not respected,"wrote Divisional Court Justice Paul Rivard; "the evidence indicates that the defendant did inform the court he felt hampered by his inability to present his argument in the French language.

"In those circumstances, the trial ought to have been adjourned to a judge who could provide a bilingual proceeding."

Defendant Frederic Geisweiller, a Toronto restaurateur and native of France, was disputing the claims of computer consultant Uriel Wittenberg that he owed $1,120 for services based on an hourly fee arrangement in place during a 10-year business relationship.

When the trial judge told Geisweiller he couldn't accommodate his request for his arguments to be heard in French, Geisweiller agreed to proceed in English. Court transcripts did not show he had difficulty understanding or communicating in English and he actively defended himself during the trial.

Wittenberg, on the other hand, denied an allegation by Geisweiller that he had taken French in high school.

The trial judge found the two parties had reached an agreement for the performance of services, which included that Wittenberg be paid his full hourly rate regardless of success, and found in Wittenberg's favour.

Under s. 134(6) of the Act, a new trial may be ordered on appeal from a Small Claims Court decision where a substantial wrong or miscarriage of justice has occurred.

Wittenberg's counsel argued that, accordingly, no new trial could be ordered since the appellant didn't appeal from the result of the trial, or raise an issue with any substantive findings of the trial judge.

But Justice Rivard disagreed. "In failing to offer the defendant the bilingual proceeding he had requested, the trial judge erred. He should have adjourned the trial to an officer who spoke both French and English "

And although the defendant's request had been for "the case to be heard in French,"Justice Rivard said he was "satisfied that this constituted a valid request for a bilingual proceeding."

The Rivard decision follows that in Beaulac v. The Queen, S.C.C., 1999 Can. Sup. Ct. Lexis 26 (May 20), which dealt with language rights under s. 530 of the Criminal Code.

Writing for the majority, Justice Michel Bastarache said an accused must be given the right to choose either official language "based on his or subjective ties to the language itself," and not just the language spoken at home or in the workplace.

An ability to speak English is irrelevant because the choice of language is not meant to support the legal right to a fair trial, Justice Bastarache wrote, "but to assist the accused in gaining equal access to a public service that is responsive to his linguistic and cultural identity."

Wittenburg told The Lawyers Weekly he had responded to the defendant's first bid for a French trial by advising the court in writing that his business relationship with defendant "was conducted exclusively in English"and that Geisweiller "has even published at least one feature article in The Globe and Mail, which bills him as 'a Toronto-based freelance writer'"

Appellant's counsel William McDowell, of Toronto's McCarthy Tetrault, said there was previously no law on what s. 126 of the Courts of Justice Act meant. To conduct a trial in English after one party requested a bilingual proceeding "would significantly gut minority language rights in Ontario, because an overwhelming amount of Franco-Ontarians also speak English."

Respondent's counsel Geoffrey Ketcheson of Toronto's Woolgar Van Wiechen Ketcheson said his client does not plan to appeal the decision.

Copyright © 1999 LexisNexis Canada Inc.

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