Justice: When there are more than a few misses

The justice sector remains in the Commissioner’s sights, especially since it was deemed to be a priority for the Commissioner’s Office in its latest strategic planning exercise. The team intends to pay closer attention to it over the next few years. The Commissioner’s Office will also examine the impact of the pilot project announced by the Attorney General for the Ottawa region and, in particular, how the legislative and regulatory framework ensures full equality for litigants.

Adjudicative Tribunals

Adjudicative tribunals are government agencies as defined in the French Language Services Act. Their adjudication role is to make rulings and hand down decisions for citizens who are unable to settle their disputes themselves. The clients of these tribunals are people who rely on social programs, or vulnerable people. All the services that these tribunals provide to the public must be available in French in designated areas of the province. In addition, their rules of evidence and procedure must be compatible with the spirit and the letter of the Act. Every year, the Commissioner’s Office receives a number of complaints about these adjudicative tribunals. This is an important issue that the Commissioner intends to monitor closely over the next few years.

Social Benefits Tribunal

The Social Benefits Tribunal (SBT) hears appeals of decisions regarding social assistance benefits. It holds hearings that are similar to court hearings, but much less formal. The SBT is now one of eight adjudicative tribunals within the Social Justice Tribunals Ontario (SJTO) cluster. This cluster of tribunals and 200 other tribunals, boards and commissions are part of Ontario’s justice system.

Complaints to the Commissioner’s Office about the SBT are not recent; the Office has been receiving them since it was established in 2007. Indeed, the subject has been dealt with at length in previous annual reports. The quality and accessibility of French-language services remain the central issues of the complaints. The list of shortcomings reported by complainants is getting longer.

Shortage of bilingual professionals and staff, absence of French-language services on the telephone and in person, disregard for the client’s preferred language in correspondence, decisions written in English in cases heard in French, and long wait times and obstacles to obtaining a date for a hearing in French.

Quite recently, the Commissioner’s Office received a new complaint about this tribunal. A community legal clinic in Northern Ontario has a number of Francophone clients. With statistics to back it up, the clinic complained that Francophone clients have to wait longer than their fellow Anglophone citizens for a hearing date with the SBT. While it takes an average of a month and a half to get a response to a hearing date request and six months between the request and the hearing date for Anglophone clients, Francophone clients had received no response four months after their initial appeal request. Meanwhile, after several telephone follow-ups with the Tribunal, the clinic was apparently told, “Wait a bit longer; a notice will be sent out shortly.” It was also informed that the hearing might be held in seven months, which is 11 months after the initial request. Such long wait times are unbearable for the clients.

This complaint is a perfect example of the delays in obtaining services and hearings in French. According to the clinic, the number of adjudicators capable of hearing a case in French is seriously inadequate. The result? Clients wonder if it is worth the trouble to wait for a hearing in French because of the time it takes, and they even consider trying to get by in English to speed up the process.

The Commissioner’s Office has noted some progress, however. In fact, it has been confirmed by the SJTO that the Tribunal has taken steps to remedy the situation. According to the SJTO, appeal requests made in French in Northern Ontario were scheduled with a French-speaking adjudicator earlier than requests made for a hearing in English at this tribunal. This trend has apparently been noted for more than a year. Moreover, wait times in Northern Ontario are shorter for requests made in French than for requests made in English in the rest of the province because of the addition of bilingual staff. Though compelling at first glance, these statistics do not lessen the complexity of the cases of vulnerable persons. Vulnerable persons often make do with the services they receive. They are not likely to demand their right to service in French, much less complain when they notice a shortcoming, for fear of sabotaging their request.

The SJTO has also adopted a French-language services policy, which applies to all eight tribunals, including the SBT. The policy states that Francophone cases are assigned to bilingual staff and adjudicators as soon as possible. However, when a staff member or an adjudicator is not available, the policy specifies that an interpreter will be present at hearings. Although, the Commissioner reminds that interpreter service is not equivalent to service in French.

The Commissioner’s Office commends the SBT on its improvements and efforts. These remedial actions are certainly positive. The Commissioner’s Office would like to see the same outcome across Ontario, in other regions served by the SBT and other adjudicative tribunals. The quality of life of Francophone citizens who are already in disadvantaged situations is at stake.

Criminal Injuries Compensation Board

Like any other adjudicative tribunal, the Criminal Injuries Compensation Board is autonomous and independent in the decisions it makes. Its role is to determine the amount of financial compensation awarded under the law to eligible persons, i.e., crime victims or members of their families. The Board, like any other tribunal, is required to provide services in French in designated areas.

In the case described in the box on the right, the story hasn’t ended there. A Board official called the legal clinic back a month after the hearing held in English to apologize. She explained that she hadn’t “arranged for an interpreter.” Although a French-language services policy is in place, which provides for the possibility of obtaining interpretation service, the expectations of the Commissioner’s Office are clear in this regard: these bodies must offer hearings in French. Under the Act, interpretation service is simply not an equivalent service.

The Ministry of the Attorney General confirmed with the Commissioner’s Office that measures are indeed in place to provide hearings in French for crime victims. The Ministry noted that applications received in French are automatically routed to bilingual staff for a hearing in French. The Ministry also provides training for staff in the active offer of service in French. In the case described, it seems clear that these mechanisms did not work.

Three strikes

“Our legal clinic operates in French and conscientiously represents French-speaking litigants before the Compensation Board. The matters that the Board deals with are often very difficult for these victims in vulnerable situations. With this in mind, we pointed out to the Board that one of the victims needed to be heard in French. We were told that that would be done. We confirmed this request on three occasions. Each time, we were assured that it would happen. The day of the hearing, the panel members didn’t know anything about a hearing in French. No arrangements had been made. Unfortunately, we had to go ahead in English, because of the delay we expected if we were given an adjournment. Our anxious client had already been looking forward to his hearing for a long time and couldn’t imagine coming back another time. Do we have to accept such disregard more than a quarter-century after the adoption of the French Language Services Act?”

A complainant

Court reporting in French

The number of cases where access to justice in French is thwarted is still surprising, in view of the awareness of language rights, the efforts of the Ministry of the Attorney General, and the agreements that this has produced to date. In the opinion of the Commissioner’s Office, it is relevant to mention the domino effect that the lack of access to justice can have. When litigants are not informed of their rights and the possibility of having bilingual proceedings and being heard in their language, a series of misadventures ensues.

A Peterborough litigant named Agnès Whitfield learned this the hard way. She requested a bilingual proceeding so that she could be heard in French in her civil action against her brother, whom she accused of sexually assaulting her when she was a child. It took more than four years and a very bumpy ride to get a decision in her favour. At the time this report was written, the case was in appeal.

Looking back, Ms. Whitfield continues to discover, even now, that there were shortcomings in French-language services throughout her case. She says, regretfully, that it all began with the Toronto lawyer she consulted about her complaint against her brother. When the lawsuit was transferred to Peterborough, a non-designated area, she would like to have been informed that she could not have a bilingual proceeding. At the risk of simplifying complex procedures, the judge at the time effectively denied her that right, arguing that she had originally filed the complaint in English and that she spoke English.

Ms. Whitfield was educated in France and Quebec, lives with a Francophone from Montreal and is perfectly bilingual. In addition, she was sexually abused by her brother in English. English is also the language of censorship forced on her by her mother, who accused her of lying. She therefore wanted to use French to “dissociate herself” from her past for the duration of the trial.

“I existed in French, in a language where censorship had never been exercised.”⁷

Agnès Whitfield

Happily, in a May 1, 2014, decision by Justice J. R. McIsaac on the Whitfield case,⁸ the Ontario Superior Court of Justice confirmed that the right to use French in the province’s courts is not limited to Francophones. It is the right of anyone who speaks French. This decision also clarifies section 126 of the Courts of Justice Act, which says that the only requirement for the right to use French is that one must speak the language, which is the case for Ms. Whitfield.

Meanwhile, other obstacles arose. Ms. Whitfield was told that she would have to pay the interpretation and translation costs herself if she insisted on testifying in French. The defence lawyer also pressed her to sign English-language consent forms. The case is now in appeal, and Ms. Whitfield claims that she continues to face undue delays and waiting times to obtain copies of the transcripts.

[TRANSLATION] “Why should French transcripts take longer than English transcripts? Working in French or in English should not affect the speed of a bilingual court reporter. This is an erroneous and unacceptable idea that infringes on the language rights of Ontario citizens who choose to use French, as an official language, in court. In my case, acceptance of this erroneous idea by the bilingual judge is allowing the opposing party to extend the time required to prepare the transcripts and, following a peremptory trial, unduly delay an appeal process that is already difficult for me to bear. In my case, the appellant is 70 years old, and most of the witnesses are in their seventies. Time is slipping away, and these undue delays may result in serious injustices.”

Agnès Whitfield

In response to Ms. Whitfield’s requests for an explanation of these delays, the Ministry of the Attorney General apparently admitted that some factors may have an impact on the time required to produce the transcripts. However, the Ministry never acknowledged that the reporting language is not a factor, and therefore did not acknowledge Ms. Whitfield’s argument and reasonable inquiries, which the Commissioner’s Office intends to pursue.

[TRANSLATION] “If these delays are due to a genuine problem, it is the responsibility of the Ministry of the Attorney General to take all necessary steps to remedy the situation quickly. On the other hand, if it is some sort of false stereotyping of bilingual trials as more ‘complicated’ than English trials, the Ministry has a duty to educate its staff, including the members of the judiciary, to counteract the negative impact that this kind of perception has on Francophones’ language rights,” added the complainant.

The circumstances surrounding Ms. Whitfield’s case are a concrete example of the lack of access to justice in French in Ontario. It is a perfect illustration of the issue raised in the Rouleau-Le Vay report, which the Commissioner’s Office endorses. This demonstrates the legal vacuum and a lack of assistance in the field that leaves Francophone litigants in a situation of flagrant injustice in areas that are not designated bilingual.

Supervised visits

When a judge orders supervised parental visits with a child or children in a divorce case, for example, it is up to the parents to agree on the visit arrangements through lawyers. So far, so good. But when the language to be used during the visits becomes an issue, absurdity creeps in.

The Supervised Access Program falls under the Ministry of the Attorney General. It provides a safe location where a parent can re-establish or maintain his or her emotional relationship with the child in the presence of a staff member or volunteer who prepares observation reports. The Ministry contracts out administration of the program to community organizations. Private centres and individuals also provide the same service for a fee. Clearly, since they are not subsidized, they are not accountable to the Ministry.

Since Ontario Regulation 284/11 came into force in 2014, ministries are required to report on third parties delivering services on their behalf, including those who are obliged to provide French-language services in accordance with the French Language Services Act. This regulation settles the matter of government-funded centres that provide supervised access services. But when the program is managed by private centres, neither the Commissioner’s Office nor the Ministry of the Attorney General have jurisdiction. It is reasonable, and disconcerting, to assume that many cases must arise that will never be reported.

For example, a lawyer recently contacted the Commissioner’s Office to obtain assistance in finding someone to supervise visits between her client and the client’s teenage daughter. Mother and daughter are both Francophones and speak French to each other. That goes without saying. But that is apparently not the case for private supervised access centres. Since a French speaker could not be found to supervise the mother-daughter visits, the visits took place in English. Naturally, this made the mother and daughter uncomfortable.

No one could remain indifferent to this distressing situation for a mother, or to the child’s unease. Following this case, in the case of the Supervised Access Centres accountable to the Ministry, the Ministry confirmed with the Commissioner’s Office that requests for services in French would not result in longer waits or delays when compared with those in English.

In another recent case, the Commissioner’s Office reported that a father was told by the staff of a supervised access centre that if his conversations with his son could not be properly recorded because of the language, the centre would have no choice but to suspend the service. The matter has been resolved in short order with the help of the Commissioner’s Office.

In the past, very few parents have had the courage to complain to the Commissioner’s Office. Parents who complained to the Commissioner’s Office prior to Ontario Regulation 284/11 coming into effect were able to obtain the services of an interpreter to translate the conversations of the Francophone parent and child with the assistance of the Commissioner’s Office. This case-by-case solution is far from ideal. Parents are therefore encouraged to report such shortcomings and difficulties in obtaining supervised access in French to the Commissioner’s Office.

7. Caroline Montpetit, “Agressions sexuelles: Une anglophone de l’Ontario obtient gain de cause en français”, Le Devoir, May 24, 2014.

8. Whitfield v. Whitfield, 2014 ONSC 2745.