Bilingualism In The Tribunal Settings ' Does The Right To Be Heard In French Include The Right To Be Understood In French? Case Commentary Of CSFTNO V Northwest Territories (Education, Culture, And Employment), 2023 SCC 31 [CSFTNO].

• Published date: 11 March 2024
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Employment Litigation/ Tribunals, Trials & Appeals & Compensation
• Law Firm: WeirFoulds LLP
• Author: Ms Kelsey L. Ivory and Priya Dube

In CSFTNO,¹ the Supreme Court of Canada was invited to clarify the scope of French language rights guaranteed under the Charter. Sections 19 and 23 of the Charter provide for French language rights in two different contexts: before the courts established by Parliament, and in education. The Court was presented with an opportunity to clarify whether the right to be heard in French includes the right to be understood in French without an interpreter. However, the Court declined the invitation and decided it was neither necessary nor appropriate to rule on the issue. While judicial restraint won the day, many intervenors put forward compelling arguments. A review of these arguments provides insight into what may come if (or when) the issue resurfaces and how this may impact the right to use French in tribunal settings.

In Ontario, debate has centered on the issue of whether a regulator's duty to deal with persons in French can be met if the regulator uses a translator. The current state of the law was set out by the Divisional Court in Bélanger c L'Ordre des médecins et chirurgiens de l'Ontario (Bélanger).² Bélanger provides that health professionals regulated under the Regulated Health Professionals Act (the "RHPA"),³ have a presumptive right to a hearing before a panel that can understand and speak French, subject to certain exceptions.⁴ There is therefore a presumptive right to be heard in French, by a Panel who understands French, without a translator, at an RHPA discipline hearing.

While Bélanger remains the law in Ontario within RHPA tribunal settings, the historic Charter jurisprudence indicates that the constitutional right to use French in the courts established by parliament does not, at present, guarantee the to be understood in French. The jurisprudence emanating from Ontario, including in Bélanger, stands at odds with the historic jurisprudence⁵ that interprets the Charter right in a more limited manner.

Will interpreters be a permissible limit on a person's right to deal with, or appear before, a tribunal in French moving forward? It remains to be seen whether Charter jurisprudence will be brought in line with Bélanger, or whether the future reconsideration of Charter jurisprudence may conversely alter the state of the law in Ontario as it relates to the right to a French tribunal hearing.

Overview of CSFTNO

CSFTNO concerned the interpretation of minority language rights guaranteed by section 23 of the Charter in the context of French language schools in the Northwest Territories ("NWT"). Section 23 provides for minority language educational rights to those whose first language learned (English or French) is that of the minority linguistic group of the province, and who wish to receive their primary instruction at school in that minority language.⁶

In 2018, the Minister of Education for the NWT denied applications brought by non-French speaking parents to...