http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/230012/index.do
Industrielle Alliance, Assurance et services financiers inc. v. Mazraani (April 20, 2017 – 2017 FCA 80, Gauthier, Boivin (author), De Montigny JJ. A.).
Précis: The worker, Mr. Mazraani, alleged that he did not speak French well. The Tax Court Judge encouraged the counsel for Industrielle and its witnesses to speak English for the most part (with the exception of technical terms). The Federal Court of Appeal held that the Tax Court procedure violated the official language rights of Industrielle, its counsel and its witnesses as well as Mr. Mazraani. The matter was referred back to the Tax Court for a new trial before another judge. The parties did not seek costs and none were awarded.
Decision: The basic issue in this appeal, as framed by Justice Boivin, was simple:
[1] The issue in this appeal is whether one of its former professional agents, Mr. Mazraani, was an employee of the Company during the period from April 10, 2012 to November 23, 2012 (relevant period). Mr. Mazraani is appealing a decision of the Minister of National Revenue (Minister) regarding the insurability of his employment under the Employment Insurance Act (Act). Because the contract was concluded in the province of Quebec, the solution to this issue depends on whether Mr. Mazraani was working under a contract of employment pursuant to article 2085 of the Civil Code of Québec (Civil Code or Q.C.C.) or as an independent contractor under a contract of enterprise or for services pursuant to article 2098 Q.C.C.
[Footnotes omitted]
The Tax Court found that Mr. Mazraani was an employee and Industrielle Alliance, Assurance et services financiers inc. (“Industrielle”), his alleged employer, appealed. Among the grounds of appeal was that the Tax Court Judge violated the official language rights of Industrielle, its counsel and its witnesses. The Federal Court of Appeal, in a decision delivered from the bench with written reasons issued subsequently agreed with Industrielle:
[25] At the hearing before this Court, Mr. Mazraani alleged that counsel Turgeon directed witnesses to speak in French in order to prevent him from understanding their testimony. While I make no determination on this point, I note that the issue would not have arisen had the Judge adjourned for the purpose of securing interpretation services.
[26] In the end, the efforts of the Judge to be “pragmatic” in finding ways around adjourning and securing interpretation services resulted not only in the violation of the official language rights of counsel Turgeon and witnesses, but also the violation of Mr. Mazraani’s official language rights. It simply was not open to the Judge to seek a shortcut around the official language rights of all those involved in the proceedings. The Judge’s failure to exercise his duty to ensure that the official language rights at issue were protected not only resulted in their violation, but further resulted in delays that could have otherwise been avoided by an adjournment to secure proper interpretation services. Pragmatism does not trump the duty to respect the official language rights of all in the course of judicial proceedings.
The Court found it was not necessary to rule on the appellant’s allegation of reasonable apprehension of bias:
[27] Finally, Industrielle Alliance submits that the Judge’s interventions and questions to its witnesses gave rise to a reasonable apprehension of bias. Suffice it to say that the number of interruptions and questions the Judge put to the witnesses appears to be excessive, even in the context of a party being self-represented and the proceedings being conducted informally: see NCJ Educational Services Limited v. Canada (National Revenue), 2009 FCA 131, 392 N.R. 11. For instance, Industrielle Alliance contends that the Judge put no less than 102 questions to the witness Mr. Michaud (Industrielle Alliance’s Memorandum of Fact and Law at para. 50). But given my finding on the issue of official language rights, I make no determination in this regard.
In the result the appeal was allowed and the matter remitted to the Tax Court for a new trial before another judge. The parties did not seek costs and none were awarded.