In 1731 the English Parliament passed a statute that required proceedings in the courts of England to be conducted in English. The act was entitled: An Act that all Proceedings in Courts of Justice within that part of Great Britain called England, and in the Court of Exchequer in Scotland, shall be in the English Language, 1731, 4 Geo. II, c.26 (the “1731 Act”). Over 100 years later, on November 19, 1858, the 1731 Act was received into the law of the province of British Columbia and has not been modified since. It remains in force in British Columbia pursuant to the requirements of the British Columbia Law and Equity Act (1996).
In 2011, a BC French Language School Board and a Federation of Francophone parents, brought an interlocutory application to the British Columbia Supreme Court to have exhibits to affidavits written in French introduced into evidence. The applicants intended to rely on the content of the exhibits, which were prepared before the litigation was contemplated, to further their roles in the “protection and promotion of French-language education in the province”. The province of British Columbia objected to the admission of the exhibits without accompanying English translations on the basis that the 1731 Act and Rule 22-3 of the BC Supreme Court Civil Rules (the “Rules”) both required “court proceedings” and any “document prepared for use in the court” to be in English. The Chamber’s judge denied the application. The British Columbia Court of Appeal dismissed the applicants’ appeal.
In a split (4-3) decision, the Supreme Court of Canada dismissed the applicants’ appeal to that court, but allowed them to recover their costs from the province throughout all proceedings.
The court’s majority decision was written by Mr. Justice Wagner:
Justice Wagner held that the BC legislature had properly used its powers to regulate the language to be used in court proceedings by adopting provisions that required civil proceedings, which included exhibits to affidavits, to be in English. In doing so, the legislature ousted the inherent jurisdiction of the courts and therefore there was no residual discretion left to admit documents in other languages without an English translation.
In addition, the BC legislature had not repealed or modified the 1731 Act, nor had it implicitly modified it by “occupying the field” with subsequent legislation. To the contrary, the BC courts have repeatedly endorsed the 1731 Act and the legislature has declined to change the law on language in court proceedings.
Even if the 1731 Act did not apply, Rule 22-3 of the Rules required that exhibits attached to affidavits and filed in court be in English. The Rule therefore limits the courts inherent jurisdiction to admit documents in languages other than English.
Finally, it was not inconsistent with the Canadian Charter of Rights and Freedoms for the BC legislature to restrict the language of court proceedings to English. The Charter does not require any province other than New Brunswick to provide for court proceedings in both official language.
The dissenting judgment was written by Justice Karakatsanis:
Justice Karakatsanis found that neither the 1731 Act nor the Rules addressed the language of exhibits in court proceedings. In light of the silence of the BC legislature on the issue and pursuant to the court’s inherent jurisdiction, judges could allow French language documents not prepared for use in court to be filed in evidence as exhibits where this will ensure the administration of justice according to law in a regular, orderly and effective manner. In a somewhat technical distinction, Justice Karakatsanis found that under the 1731 Act, the prohibition on foreign languages in “proceedings” no matter how broadly proceedings is defined – does not address the language of exhibits filed as evidence or prevent the tendering or acceptance of a document in a language other than English.
Similarly, the Rules do not define “evidence” or “exhibit” and do not directly address the language of the proceedings other than Rule 22-3 which refers to documents “prepared for use in the court”. The exhibits at issue in the appeal were created in French long before litigation was contemplated and therefore were not prepared for use in the court.
In the absence of clear and precise statutory language addressing the language in which documents not prepared for use in court must be filed, the BC legislature had not ousted the court’s inherent jurisdiction. Therefore the Supreme Court could exercise that jurisdiction to admit French documents if doing so would uphold, protect and fulfil the judicial function of administering justice.