The right to fair justice in French before the Ontario Court of Appeal

TORONTO – Dismissed at first instance by the Superior Court of Ontario, a French-speaking litigant is appealing his case and demanding that the province respect its commitments to offer the same opportunities for processing cases whether they are in French or in English.

Abdelmajid Rahmouni’s case was heard this Friday by the Court of Appeal, the highest court in the province. When deliberated, the outcome of this legal battle could have consequences on linguistic fairness before the Ontario courts for all French-speaking litigants.

This teacher, in dispute with the Ontario Teachers’ Association (AEFO), has been waiting for almost four years for the Human Rights Tribunal of Ontario (HRTO) to process his complaint in French . A waiting period deemed unacceptable that it determined it to engage in a legal standoff against the province, in order to force it to establish a minimum quorum of bilingual decision-makers.

To obtain justice as quickly in French as in English, it would be enough for the Attorney General to recommend more French-speaking judges to the Lieutenant Governor, responsible for their appointment, believes the complainant. The problem is that no law governing appointments to adjudicative tribunals requires language skills.

However, his hopes were swept away for the first time by the Superior Court last November, by a motion to strike, the judge considering that this request did not fall within the jurisdiction of the Superior Court but that of the Divisional Court and that his declaration did not was based on no meritorious cause of action.

Mr. Rahmouni therefore turned to the Court of Appeal to try to reverse the decision, invoking the French Language Services Act, the Canadian Charter of Rights and Freedoms, the Constitutional Act of 1867 but also the related linguistic clauses to the Memorandum of Understanding between the Attorney General of Ontario and Tribunals Ontario (TDO, the body which administers the HRTO).

The latter provides that services in French must be “clearly announced, visible, easy to access and of equivalent quality to the services offered in English”.

The opposing party representing the Attorney General of Ontario requested an order dismissing this appeal, finding among other things that the motion judge made no error.

Currently, TDO’s French Language Services Policy provides for bilingual staff to be assigned to a hearing on the merits when a party requests that a proceeding be heard in French. But in fact, Mr. Rahmouni’s lawyer, Me Pierre Lermusieaux, points out unacceptable delays, considering that “the motion judge erred in law” by concluding that the Superior Court was not competent to hear his action and by not taking into account the inability of the HRTO to remedy the breaches of the Protocol.

If he manages to convince the judge, he could obtain the obligation of the Lieutenant Governor in Council of Ontario to appoint and maintain within the HRTO a minimum quorum of members capable of hearing cases, communicating with the parties , consider the evidence, and render decisions entirely in French. At the same time, he hopes to force the Attorney General to always recommend to the Lieutenant Governor a minimum quorum of such candidates for appointment.

This obligation could succeed even if the first instance judgment was confirmed on appeal, thinks Me Lermusieaux. “In the event that the Court of Appeal confirms the cancellation of the declaration, it is in the interest of justice to authorize its modification to correct the deficiencies identified, as confirmed by the motion judge in his conclusions,” insists the lawyer.

“Linguistic rights of an institutional nature require government measures for their implementation. »