Favourable decision by the FCA on TCC trial judge’s violation of Industrial Alliance’s language rights

Fasken Martineau successfully appealed a decision by Justice Archambault of the Tax Court of Canada (TCC) against its client Industrial Alliance. The TCC decision established that Mr. Mazraani, a sales representative who had signed a contract of enterprise with Industrial, did in fact hold insurable employment under the Employment Insurance Act. The unfavourable impact of the TCC’s decision on Industrial was considerable, since the decision affected the status not only of all of Industrial’s representatives, but also that of the entire financial services distribution sector in Canada who use self-employed workers and who all have the same business model. The principal ground for appeal was that the TCC judge violated the language rights of Industrial Alliance and its witnesses, who all stated that they wished to express themselves in French. The second ground of appeal was that the judge’s excessive intervention during examinations raised an apprehension of bias. The FCA granted Fasken Martineau’s appeal, quashed the TCC decision and sent the matter back to the TCC for a new hearing before a different judge. It held that the TCC judge violated the constitutional language rights of the parties, the witnesses and counsel for Industrial (Fasken) several times throughout the hearing. English and French are Canada’s two official languages and have equality of status in the federal courts, including the TCC. Litigators, counsel, witnesses, judges and other magistrates have the constitutional right to choose the official language in which they wish to express themselves, regardless of their ability to express themselves in both languages. The second issue raised on appeal alleged that TCC judge’s intervention was excessive and raised a doubt as to his bias. Even though the FCA did not rule on it as such due to its conclusion on the language issue, it nonetheless made an interesting observation at paras. 7 and 27 of the decision: “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 …”. Fasken Martineau lawyers advised Industrial Alliance. The team was composed of Nicolas Simard (Tax), Yves Turgeon (Labour Law) and Paul Côté-Lépine (Labour Law).