Court file no. : 34908
IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)
BETWEEN :
CONSEIL SCOLAIRE FRANCOPHONE DE LA COLOMBIE-BRITANNIQUE , FÉDÉRATION DES PARENTS FRANCOPHONES DE COLOMBIE-BRITANNIQUE, HÉLÈNE REID, PAUL ROSTAGNO, ANNETTE AZAR-DIEHL, PIERRE MASSICOTTE, LINE BEAUCHEMIN, ALAIN MILOT, MÉLANIE BOUCHER, VALÉRIE WALTERS, CAROLINE BÉDARD, LISE BUITENDYK, ISABELLE CHENAIL, KIM GERRY, LOUISE BALDO, NICOLE LEBLANC, GUY BOURBEAU, SUZANNE MARTIN, LISE SÉGUIN, KIM DAVIS, VALÉRIE SICOTTE, CHANTAL RICARD, NADIE SAVARD, MARIE-CHRISTINE WILSON, STÉPHANE PERRON, MARIE-NICOLE DUBOIS, BRUNO CALVIGNAC, CARINE HUTCHINSON, JACKIE PALLARD, KATHLEEN BAYZAND, GUY CHAMPOUX, RACHEL CHIRICO, CATE KORINTH, ANN QUARTERMAN AND CAROLINE ROUSSELLE Appellants (Appellants, Applicant) - and -
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF BRITISH COLUMBIA AND THE MINISTER OF EDUCATION OF THE PROVINCE OF BRITISH COLUMBIA Respondents (Respondents, Respondents)
UNOFFICIAL COURTESY TRANSLATION OF THE FACTUM OF THE APPELLANTS
HEENAN BLAIKIE LLP Lawyers 55 Metcalfe Street Suite 300 Ottawa, Ontario K1P 6L5
Robert W. Grant, Q.C. Mark C. Power Jennifer Klinck
Tel.: 613-236-1668 Fax.: 877-446-5456 Email: [email protected] [email protected] [email protected]
Counsel for the Appellants
ORIGINAL : Registrar of the Supreme Court of Canada
AND COPIES : Ministry of Attorney General LEGAL SERVICES BRANCH P.O. Box 9280 Stn Prov Govt Victoria, British Columbia V8W 9J7
Véronica Jackson Tel.: 250-356-8499 Fax: 250-356-9154 Email: [email protected]
Karrie Wolfe Tel.: 250-356-6185 Fax: 250-356-9154 Email: [email protected]
Counsel for the Respondents, Her Majesty the Queen in Right of the Province of British Columbia and the Minister of Education for the Province of British Columbia
Burke-Robertson 441 MacLaren St. Suite 200 Ottawa, Ontario K2P 2H3
Robert E. Houston, Q.C. Tel.: 613-566-2058 Fax: 613-235-4430 Email: [email protected]
Agents for the Respondents, Her Majesty the Queen in Right of the Province of British Columbia and Minister of Education for the Province of British Columbia
i
TABLE OF CONTENTS
PART I – OVERVIEW AND FACTS ...... 1
(A) Overview ...... 1
(B) Facts ...... 3
PARTS II AND III – ISSUES, LAW AND ARGUMENT ...... 5
A) Scope of the Issues Raised in this Appeal ...... 5
B) Constitutional Principles and Charter Values Underpin this Appeal ...... 5
C) The Law of Reception ...... 6
D) The 1731 Act Does Not Prohibit the Admission of Documents in a Language Other than English, in the Absence of a Translation ...... 28
E) No Rule Governs the Language of Documentary Evidence ...... 31
F) The Inherent Jurisdiction of the Court permits the Tendering of Untranslated Documentary Evidence ...... 34
PART IV - SUBMISSIONS AS TO COSTS ...... 37
PART V - ORDER SOUGHT ...... 37
PART VI – TABLE OF AUTHORITIES ...... 38
PART VII – LAWS AND STATUTES ...... 42
1
PART I – OVERVIEW AND FACTS
(A) Overview
1. This case began with an application by the Appellants for leave to tender French documents into evidence, without English translations. The Appellants did not claim any right to have the documents admitted; they argued only that a superior court has the discretion, in appropriate circumstances, to admit French documents, without English translations.
2. The Court of Appeal held that an obscure English statute, long since repealed in England, remains in force in British Columbia and leaves the British Columbia Supreme Court with no residual discretion whatsoever to admit into evidence documents originally prepared in a language other than English, unless accompanied by an English translation. The English statute, 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 , 4 Geo II, c 26 (UK) (“ 1731 Act ”), was held to be in force by the operation of s. 2 of the Law and Equity Act .1
3. The result of this decision is that an English statute, which was passed almost 300 years ago and intended to apply in England (not in the colonies), 2 today enjoys the same status as if it had been enacted by the British Columbia Legislature and limits the power of the superior courts to control their own process.
4. The power of a superior court to control its own process is not only the cornerstone of judicial independence; it is a crucial instrument in accessible justice. By fashioning procedures to better serve the public and the needs of the parties, the court can expedite and simplify litigation, achieving a fair and just outcome at a cost within reach of ordinary parties.
5. The Appellants respectfully submit that the Court of Appeal adopted an overly technical and unduly expansive approach to the law of reception. In doing so, the court failed to take a purposive
1 RSBC 1996, c 253 [ Law and Equity Act ]. 2 This case is not concerned with laws passed by the Imperial Parliament at Westminster, in its capacity as such, which were expressly intended to be in force in the colony (Imperial Law in force proprio vigore ). Instead, this case is concerned with the English statute law developed in and for England, but which enters into force in a colony because it was part of the law of England, that is, the law of reception. Moreover, this case does not deal with the application of English common law rules in Canada. The reception of common law rules has not posed similar problems to those raised by the reception of English statute law because it is well-accepted that the courts may change and develop the common law through a process of rational persuasion, which is little impeded by formalism (JE Côté, “The Reception of English Law” (1977) 15 Alta LR 29 at 31, 56 [Côté]; John C Bouck, « Introducing English Statute Law in the Provinces: Time for a Change? » (1979), 57 Rev Can Bar 74 at 79-80 [Bouck ]; Saskatchewan Law Reform Commission, The Status of English Statute Law in Saskatchewan (Saskatoon, 1990) at 5 [ Status of English Statute Law ]).
2 approach. It failed to consider the purpose of the law of reception, the purpose of the 1731 Act or the imperative need for courts to be able to control their own processes.
6. The purpose of the law of reception was to avoid a legal vacuum in a nascent colony. This appeal invites the Court to articulate the proper approach, today, for determining whether an ancient English statute will have normative force in British Columbia. Close to 15,000 statutes were passed by the English Parliament between Magna Carta, 1225 and November 19th, 1858, the arbitrary date selected by the British Columbia Legislature.3 Very few of these statutes have ever been considered by Canadian courts. Yet, based on the reasons of the Court of Appeal, each of these thousands of statutes (the vast majority of which remain unknown to jurists and the legislator) is in force in British Columbia, until such time as it is expressly repealed or directly contradicted by an enactment of the British Columbia Legislature.
7. The Appellants submit that such an expansive approach to the law of reception seriously undermines the basic constitutional principles of the rule of law, democracy and access to justice. At the same time, such an approach serves no useful purpose, given the mature and comprehensive system of laws that now exists across Canadian jurisdictions, making the reception of English statute law largely unnecessary.
8. It may be that some English statutes represent essential features of the Canadian legal landscape and could not be excluded without throwing the law into a state of confusion. Judicial reform of the law of reception of English statutes should therefore recognize and preserve certain essential statutes. Nevertheless, the existence of a handful of useful statutes cannot justify an overly expansive approach to the law of reception, which would give normative force to a plethora of antiquated and burdensome English statutes, many of which may not even be possible to identify.
9. It is imperative that Canada’s highest Court ensures that the law of reception is appropriately tailored to the modern reality of a country that has been self-governing and independent of England for more than a century. The Appellants submit that this Court should affirm a restrictive and principled test for the reception of English statutes. The test proposed by the Appellants is restrictive because it requires that an English statute be both applicable and necessary to local circumstances in order for it to have normative in Canada today. It is principled because it evaluates applicability and necessity purposively, in accordance with fundamental constitutional principles, while also taking into account local circumstances and changing social realities. Such a test would preserve what is necessary, while
3 Ibid at 7; Law and Equity Act , s. 2.
3 allowing this country to cut itself free from the deadweight of ancient statutes enacted by a foreign and temporally distant English Parliament.
(B) Facts
10. In 2010, the Conseil scolaire francophone de la Colombie-Britannique (“the Conseil”), the Fédération des parents francophones de Colombie-Britannique (“the Fédération”), and individual parents (collectively “the Appellants”) initiated an action against Her Majesty the Queen in Right of the Province of British Columbia and the Minister of Education of British Columbia (collectively “the Respondents”), claiming the implementation of s. 23 of the Canadian Charter of Rights and Freedoms (“the Charter ”).
11. The trial is scheduled to last at least 5 months and to begin early in the fall of 2013.4 The documentary evidence in the main action is voluminous; the cost of translating it into English would be exorbitant.5 The Appellant’s action is being case managed by Justice Willcock, who was the Chambers judge in the application giving rise to this appeal and who will be the trial judge for the action. The Appellants, their counsel, and Justice Willcock are all able to read and understand French documents, without English translations.6 The Respondents have an institutional capacity to read and understand French documents. 7
1) The Application Giving Rise to this Appeal
12. The Respondents filed a series of pre-trial applications alleging, inter alia , that the Conseil and the Fédération lacked standing as plaintiffs. In response to these applications, several affidavits were filed, which demonstrated the role, objects and history of the Conseil and the Fédération. These affidavits were written in English, and had French documents attached as exhibits.
13. These documents, almost exclusively in French, were prepared in the course of the day-to-day operations of the Conseil and the Fédération. They were not created in the context or for the purposes of litigation. English versions of most of these documents do not exist.8 No legislation in British
4 Conseil scolaire francophone de la Colombie-Britannique v British Columbia (Education) , 2012 BCSC 582 (Certificate of trial readiness) [Certificate of trial readiness]; Conseil scolaire francophone de la Colombie-Britannique v British Columbia (Education) (August 10, 2012) Vancouver S103975 (BCSC) at para 34 [August 10 Oral Reasons]. 5 Conseil Scolaire Francophone de la Colombie-Britannique v British Columbia (Education) , 2012 BCSC 582 at para 15 [Conseil , 2012 BCSC 582]; August 10 Oral Reasons, supra note 4 at para 6. 6 Conseil scolaire francophone de la Colombie-Britannique v British Columbia (Education) (November 2, 2010) Vancouver S103975, Case Planning Conference Transcript at 2 [November 2 2010 Case Planning Conference Transcript]. 7 Affidavit of Dany Gabay, sworn May 2, 2011 at paras. 1-3 [Affidavit of Dany Gabay]. See also the obligations of the government by virtue of R. v Beaulac , [1999] 1 SCR 768 [Beaulac ]. 8 Conseil , 2012 BCSC 582, supra note 5 at para. 19.
4 Columbia requires either organization to maintain its documents and records in English. Indeed, the Charter requires the Conseil – a French-language school board which is responsible for the management and control of French-language primary and secondary schools and which employs over 700 people 9 – to function in French. 10
14. Four (4) days prior to the return date of the Respondents’ applications, the Respondents raised their objection to the admissibility of the Appellants’ exhibits. The Appellants requested price quotations for the translation of the French exhibits. A translator provided an estimate of over $8,500, but indicated that he would need at least several weeks to complete the translation. 11 A translation company provided a quote of over $23,500, but did not have sufficient resources to complete the translation within only four days. 12 The additional delays and costs associated with obtaining English translations therefore made it impossible to do so.
15. The Appellants accordingly filed an application for a declaration that the British Columbia Supreme Court has the discretion to admit into evidence French documents, without an English translation, and that the court ought to exercise its discretion to admit the French documents in the circumstances.13 Justice Willcock dismissed the Appellants’ application, holding that he had no such discretion because the 1731 Act , which he concluded was still in force in British Columbia, mandates that all evidence tendered in civil proceedings in British Columbia must be in English, without exception.
16. The Court of Appeal, relying on R v Mercure ,14 adopted an excessively technical approach. 15 Based on its conclusion that the entirety of the particular subjects addressed by the 1731 Act had not been specifically and explicitly addressed by subsequent legislation and because the 1731 Act did not appear to directly conflict with other statutes and rules in the province dealing with civil procedure, the Court of Appeal declared the 1731 Act to be in force in the province. By applying such a strict test for the implied repeal of received English statutes, the Court of Appeal accorded the 1731 Act the same status as statutes enacted by the British Columbia Legislature.
9 Affidavit of Raymond Ouimet, sworn May 30, 2011 at paras 2, 13. 10 Mahe v Alberta , [1990] 1 SCR 342 at 373 [Mahe ]; Reference re Public Schools Act (Man.) , s 79(3), (4) and (7), [1993] 1 SCR 839 at 854-855. 11 Affidavit of Alexandra Waite, sworn July 11, 2011 at para 12 [Affidavit of Alexandra Waite]. 12 Ibid at paras 10, 11. 13 See Conseil scolaire francophone de la Colombie-Britannique v British Columbia (Education) , 2011 BCSC 1219 (Notice of Application) at para 1. 14 R v Mercure , [1988] 1 SCR 234 [ Mercure ]. 15 Conseil scolaire francophone de la Colombie-Britannique v British Columbia , 2012 BCCA 282 at para 35 (decision of the Court of Appeal below) [ Conseil scolaire francophone de la Colombie-Britannique v British Columbia ].
5 PARTS II AND III – ISSUES, LAW AND ARGUMENT
A) Scope of the Issues Raised in this Appeal
17. The Appellants are not claiming any right to a civil trial in British Columbia conducted in a language other than English. Nor are they claiming any right to have documents written in a language other than English admitted into evidence in a civil proceeding in British Columbia. The Appellants seek only a declaration that the British Columbia Supreme Court has the discretion, in appropriate circumstances, to admit French documents into evidence, without requiring English translations. If the court exercises its discretion to admit the untranslated French documents, the Appellants have no objection to the Respondents tendering (at their expense) English translations of French documents.
B) Constitutional Principles and Charter Values Underpin this Appeal
18. Several constitutional principles and Charter values are highly relevant to, and indeed inseparable from, the issues in this appeal. Constitutional principles and Charter values must inform this Court’s interpretation of the law of reception, including s. 2 of the Law and Equity Act , as well as its interpretation of the 1731 Act .16 Furthermore, the exercise of the inherent discretion of the superior courts to control their processes must also take into account constitutional principles and Charter values.17
19. The constitutional principles that are directly applicable to this case include the rule of law, 18 democracy, 19 the independence of the judiciary 20 and the protection of minorities. 21 The Charter values at stake in this case include the advancement toward substantive equality of English and French, which is embodied in s. 16(3) of the Charter and which plays an important role in the interpretation of legislation that affects the use of English and French, 22 along with Canada’s multicultural heritage, which is affirmed by s. 27 of the Charter .
20. Finally, it is important that this Court bear in mind that the overall context of this appeal is litigation about minority rights. The Appellants’ constitutional rights to an education in French in British Columbia are at stake in the underlying action. The Appellants have been forced to proceed
16 R v Zundel , [1992] 2 SCR 731 at 771; Lalonde v Ontario (Commission de restructuration des services de santé) , [2001] OJ No 4767 at para 174 (CA) [Lalonde ]. 17 Dagenais v Canadian Broadcasting Corp , [1994] 3 SCR 835 at 914; R v Williams , [1998] 1 SCR 1128 at paras 44, 49. 18 Reference re Secession of Quebec , [1998] 2 SCR 217 at paras 70-78 [ Secession Reference ]. 19 Ibid at paras 61-69. 20 Ref re Remuneration of Judges of the Prov Court of PEI; Ref re Independence and Impartiality of Judges of the Prov Court of PEI , [1997] 3 SCR 3 at para 83 [Judges Reference ]. 21 Secession Reference , supra note 18 at paras 79-82. 22 Lalonde , supra note 16 at para 92.
6 with this litigation in order to demand the implementation of their right to have their children educated in the language of the minority. 23 The importance of permitting superior courts to tailor procedures to make the courts accessible to official language minorities is therefore also at stake in this appeal.
C) The Law of Reception
1) General Principles
21. The law of reception, either at common law or as codified by legislative enactment, provides that when a jurisdiction is newly created, the statutes and common law in force in England as of a set cut-off date may be received in the newly created territory. The doctrine is intended to ensure that there is no legal vacuum. It is useful when legal systems are at their primary stages, 24 to provide the foundation for a jurisdiction’s own system of laws 25 and in structuring its initial form. 26 However, as Lord Cranworth observed in Whicker v Hume , “[n]othing is more difficult than to know which of our laws is to be regarded as imported into our colonies […] Who is to decide whether they are adopted or not?”27
22. In British Columbia, s. 2 of the Law and Equity Act provides (emphasis added):
Subject to section 3, the Civil and Criminal Laws of England, as they existed on November 19, 1858, so far as they are not from local circumstances inapplicable, are in force in British Columbia, but those laws must be held to be modified and altered by all legislation that has the force of law in British Columbia or in any former colony comprised within its geographical limits. 23. An assertion that an English statute is in force pursuant to the law of reception can be challenged on at least three grounds. First, the statute cannot enter into force in Canada if it was not in force in England at the cut-off date. Second, the statute will not be in force if it is “from local circumstances inapplicable.” Finally, an English statute that is both received and applicable will cease to be in force if it has been “modified or altered” by the jurisdiction in question.
24. In Ontario, Manitoba, Saskatchewan, Alberta, Quebec and in the territories, legislative provisions provide for the reception of English statutes. 28 Elsewhere, law of reception applies as a
23 See Conseil scolaire francophone de la Colombie-Britannique v British Columbia (Education) , 2011 BCSC 1219; Fédération des parents francophones de Columbie- Britannique v British Columbia (Attorney General) , 2012 BCCA 422; Conseil Scolaire Francophone de la Colombie-Britannique v British Columbia , supra note 15. 24 H Patrick Glenn, “Persuasive Authority” (1987) 32 McGill LJ 261 at 264 [Glenn]. 25 Barry Cahill, “How Far English Laws are in Force Here: Nova Scotia’s First Century of Reception Law Jurisprudence” (1993), UNBLJ 113 at 131 [“Cahill”]. 26 Bouck, supra note 2 at 80. 27 Whicker v Hume (1858), 7 HLC 124 at 161. 28 In Ontario, the cut-off date is October 15, 1792 (Property and Civil Rights Act , RSO 1990, c P 29, s. 1 [ Property and Civil Rights Act ]). In Manitoba, it is 15 July 1870 (The Court of Queen’s Bench Act , CCSM c C280, s. 33 [ Court of Queen’s Bench Act ]). In the Northwest Territories, it is July 15, 1870 (Northwest Territories Act , RSC 1985, c N-27, s.
7 matter of common law. 29 The applicable cut-off dates for identifying English statutes that may be in force vary across the country.
2) An Unduly Expansive Approach to the Reception of English Statutes Undermines the Rule of Law, Democracy and Access to Justice 25. An unduly expansive approach to the law of reception, particularly as it applies to the reception of English statute law, undermines the rule of law, democracy and access to justice. These various difficulties have been the subject of considerable criticism. They demonstrate that a strict and principled approach must be preferred.
a) The Practical Impossibility of Knowing the Law in Force in England on November 19, 1858 or at Another Point in Time 26. J.E. Côté 30 has noted that a large amount of English statutory law remaining in force in a developed and legally sophisticated jurisdiction will become problematic:
The imaginative reader may already have concluded that such a wholesale reception of English law into a new country is a useful shortcut in the early years, but may prove to be a great bother in the end. Local statutes and common law rules are easy to ascertain but a dusty collection of obscure and ancient English statutes long since forgotten in the mother country is not. A few pioneering jurisdictions have tidied up this mess by reprinting or re- enacting the old English Acts which are still of use, and so putting them in a convenient and accessible form. Often the other ones have been repealed. Our detailed examination in the chapters to follow will close with an account of these much-needed reforms. 31 27. The most fundamental difficulty with the law of reception as it applies to English statute law is that the statute law in force in England at the cut-off date is practically impossible to determine. Only the English statutes that were in force in England on November 19, 1858 could potentially be in force in British Columbia today.32 However, because England’s statute revision projects came only later, any
22(1) [Northwest Territories Act ]). That same provision and cut-off date also applies in Saskatchewan by the application of s. 16 of the Saskatchewan Act , 1905, 4-5 Edw VII, c. 42 (Can) [Saskatchewan Act ]; in Alberta by the application of s. 16 of the Alberta Act , 1905, 4-5 Edw VII, c. 3 (Can) [Alberta Act ]; in the Yukon by the application of s. 9 of the Yukon Territory Act, 1898 , 61 Victoria, c. 6 (Can) [Yukon Territory Act ] and in Nunavut by the application of s. 9 of the Nunavut Act , SC 1993, c 28 [Nunavut Act ]. In Quebec, the reception of English law is limited to criminal and testamentary matters by the Quebec Act (1774), 14 Geo 3, c 83 [Quebec Act ]. 29 In Nova Scotia, the cut-off date has been said to be October 3, 1758, the date on which the first legislative assembly met, although there is also support for dates in 1784 and 1660 (Côté, supra note 2 at 87). Cahill even argues that there is no fixed cut-off date in Nova Scotia at all (Cahill, supra note 25 at 153). In Newfoundland, the cut-off date is December 31, 1832, the day before the holding of the first legislative assembly (Côté, supra note 2 at 87). In New Brunswick, the cut-off date appears to be 1660, the year of the Restoration of Charles II (Cahill, supra note 25 at 128; Scott v Scott (1970), 2 NBR (2d) 849 at 860 (CA); but see Côté, supra note 2 at 87). In Prince Edward Island, the cut-off date is October 7, 1763 (Côté, supra note 2 at 88). 30 J E Côté is frequently cited as the seminal authority on the reception of English law. See for example: B Slattery, “The Charter’s Relevance to Private Litigation: Does Dolphin Deliver?” (1986-1987) McGill LJ 905, at 910; Cahill, supra note 25 at 113; D Howes, “Property, God and Nature in the Thought of Sir John Beverley Robinson” (1985) 30 McGill LJ 365 at 371; J Vanderlinden, “La Réception des systemes juridiques europeens au Canada” (1996-1997) 1 Rev CL Français 1 at 2. 31 Côté, supra note 2 at 37. 32 Law and Equity Act , s 2.
8 attempt to compile all the English statute law in force prior to 1870 would result in a partial list only. Sir C. Ilbert described England’s first statute revisions projects, which began in 1861. Their goal was “to purge away dead matter from the statute book, and thus to facilitate the preparation of an edition of the statutes which should contain only such acts as are in force”. 33 Moreover, he explained that “after the first three Statute Law Revision Acts had been passed in England, active steps were taken in 1868 by Lord Chancellor Cairns for the preparation of such an edition by appointing a Statute Law
Committee to superintend the execution of the work.” This resulted in the first revised edition of the English Statutes, in 1870. 34 Nevertheless, even this publication was not complete.35 It was impossible to precisely determine those English statutes that were in force on a particular date. This state of affairs would have prevented even the lawyers of the period from determining which laws were in force in England and in British Columbia. This is not to mention the herculean task of attempting – today – to conduct a point-in time analysis of even an incomplete list of statutes in force in England on the specific date of November 19, 1858 (the cut-off date for British Columbia). The Appellants were unable to generate a complete list of statutes in force in England on November 19, 1858, using the five (5) major electronic legal databases for English legislation. Moreover, the Appellants found that point- in-time research was impossible for statutes enacted prior to 1900.36
28. As a practical matter, it was and remains impossible to establish a comprehensive list of all the English statutes that were in force in England on November 19, 1858.
29. In a very clear example of how difficult it is to determine the statute law in force in England before 1870, the Respondents and the courts below took a simplistic and indeed inaccurate view of the English statutes upon which they relied. In the Court of Appeal, the Respondents relied on a statute passed even earlier than the 1731 Act , the Pleading in English Act 1362 , 36 Edw 3 c 15 (the “ 1362 Act ”). The 1362 Act (itself written in French) did indeed provide “qe toutes plees qe serront a pleder […] soient pledez monstrez defenduz responduz debatuz et juggez en la lange Engleise et qils soient entreez et enroullez en Latin.” However, the authorities indicate that the courts took no notice of this
33 Sir C Ilbert, Legislative Methods and Forms (Oxford: Clarendon Press, 1901) at 24 [Ilbert, Legislative Methods and Forms ]; Sir C Ilbert, “The English Statute Book” (1900) 2 Journal of the Society of Comparative Legislation at 78 [Ilbert, The English Statute Book ]. 34 Ilbert , Legislative Methods and Forms , supra note 33 at 24; Ilbert, The English Statute Book , supra note 33 at 78. 35 Ibid at 75. 36 See the scope of coverage pages for the Official British Statute Database (online at http://www.legislation.gov.uk); for Justis (online at www.justis.com/data-coverage/uk-statutes.aspx); for Westlaw (online at www.westlaw.co.uk/inside- westlaw-uk/legislation/legislation-functionality); for Lexis (online at www.lexisnexis.co.uk/our-solutions/legal/research- knowledge-solutions/find-unrivalled-information/lexislibrary.aspx) ; and for the British and Irish Legal Information Institute (online at www.bailii.org/uk/legis/num_act).
9 radical reform introduced by the 1362 Act . 37 Rather, “[t]he only reference to the statute in decided cases in the law reports are to the proviso concerning the continued use of Latin,” which was “taken as a statutory requirement that all records should be in Latin.” 38 By ignoring the fact that the 1362 Act had been interpreted to require the use of Latin, but never had the effects that an acontextual reading of its words might suggest, the Respondents misapprehended the effects of this ancient English statute.
30. Even more significantly, the British Columbia jurisprudence, the courts below in this case and the Respondents have simply referred to the 1731 Act , while completely ignoring a significant amendment which was brought to the Act in 1733, before the 1731 Act ever came into force.
According to Blackstone, the 1731 Act did not effect the purpose for which it was passed. 39 The law remained just as inaccessible to ordinary citizens as before, while many inconveniences arose for those practicing in the English courts. Notably, the 1731 Act actually ended up increasing the cost of legal proceedings. Because of stamp duties levied on the paper used for pleadings at the time, lawyers could only write a certain number of words per sheet. The English language being far more verbose than Latin, it followed that many more sheets were required. Furthermore, technical Latin phrases and the names of writs and other process were not capable of serious English translation. 40 All of this made it necessary to amend the 1731 Act in 1733, by way of an amending Act, 6 Geo II c 14, which allowed all technical words to continue in the usual language.41 According to Blackstone, the amendment “has thereby almost defeated every beneficial purpose of the former statute.” 42 The British Columbia jurisprudence has ignored this amendment and therefore failed to consider the crucial fact that the 1731 Act was amended to allow the use of languages other than English in order to improve access to justice and the efficiency of court proceedings. The 1731 Act , as amended, has therefore not been interpreted in light of its full language, along with the purpose and import of the limiting amendment.
31. The difficulty of determining the law in force in England on November 19, 1858, is also highlighted by the experience of the British Columbia Law Reform Commission. The Commission explained in a report that “a project aimed at introducing a degree of certainty concerning the extent to which English statute law is in force [in British Columbia]” had been part of its program for many
37 J H Baker, “The Three Languages of the Common Law” (1998) 43 McGill LJ 5 at 21 [Baker]. 38 Ibid at 21; see also W S Holdsworth, A History of English Law , 3rd ed, vol 2 (London: Methuen, 1927) at 478 [Holdsworth]. 39 Sir W Blackstone, Commentaries on the Laws of England , 15 th ed (London: Strahan, 1809) Book III, c 21 at 322-323 [Blackstone Book III]. 40 Ibid . 41 6 Geo II c. 14; Blackstone Book III, supra note 39 at 322-323. 42 Ibid at 323.
10 years. The hope had been “to identify those statutes which are in force with a view to rationalizing this aspect of [British Columbia’s] statute law.” The problem was that “an uncertain number of English statutes are in force in [the] Province.” Since the project could not be completed, jurists in British Columbia still do not know which ancient English statutes might possibly be in force in the province.43
32. In fact, prior to the Saskatchewan Law Reform Commission’s significant 1990 report, no reasonably comprehensive list of English statutes in force in England on a Canadian jurisdiction’s cut- off date had ever been created:
Prior to the publication of this report, there was not even a reasonably comprehensive list of the received law in force in Saskatchewan (or in any other Canadian province). Identification of the law that can be regarded as in force was itself a major research project, breaking new ground in Canada. 44 Even the list that the Commission ultimately compiled was “not a comprehensive collection of statutes that have been found to be, or that may be, in force; it deliberately omit[ted] statutes that are no longer of utility, even if a technical argument for reception might be made.” 45 Thus, even the Commission’s pioneering and colossal research project did not generate a list of statutes in force in England on July 15, 1870 (Saskatchewan’s cut-off date) that would have been sufficiently exhaustive to satisfy the Court of Appeal’s expansive test for reception – essentially depending upon an express repeal of each of the thousands of statutes in force in England on November 19, 1858.
33. According to this research conducted in Saskatchewan, between the Magna Carta and July 15,
1870, some fifteen thousand (15,000) statutes were passed by the English Parliament. 46 By the end of the 1980s, only roughly one hundred (100) of those statutes had ever been considered by a Saskatchewan Court 47 and only “very few English statutes have been expressly affected by Saskatchewan legislation.”48 More significantly, the Commission concluded that the rules governing the law of reception “are loose enough to make it conceivable that almost any of the 15,000 statutes passed before 1870 could be found to be in force.” 49 “In its 1990 report, the Commission identified 43 statutes that remained practically important. Saskatchewan legislation since then has rendered some of
43 Law Reform Commission of British Columbia, Annual Report 1984-85 at 5 [BC Law Reform Commission]. 44 Status of English Statute Law , supra note 2 at ii. 45 Ibid at 295. 46 Ibid at 7. 47 Ibid . 48 Ibid at 44. 49 Ibid at 7.
11 those obsolete. […] In the Commission’s opinion, only 29 statutes or provisions of statutes, in this category need to be retained as part of Saskatchewan law.” 50
34. Speaking of the astronomical number of obscure English statutes that could possibly be in force in Canada, unbeknownst to the Canadian legal community, J.E. Côté has opined that “[s]uch a state of affairs is disgraceful, for it is of the highest importance that the law be ascertainable.” 51 The Court of Appeal’s unduly expansive approach to the law of reception will import all manner of obscure, inaccessible and unintelligible English statutes, unless each is expressly repealed by or manifestly inconsistent with provincial legislation. Such a result can only obstruct and burden the legal community and the public it serves. As such, the Court of Appeal’s unduly expansive approach to the law of reception is inconsistent with the rule of law, which “[a]t its most basic level, […] vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs.” 52 Indeed, the rule of law includes “a sense of orderliness, of subjection to known legal rules.” 53
b) Further Problems – A Democratic Deficit and an Obstacle to Access to Justice
35. Furthermore, the Court of Appeal’s unduly expansive approach to the law of reception also produces a serious democratic deficit and impedes access to justice. According to Justice J. C. Bouck,
In 1979 one might ask why should the laws of this province be afflicted by English legislation enacted centuries ago? What other English Acts or indeed sections of Acts lie undiscovered in these ancient statute books? Is a community such as British Columbia with its own legislature, its own court system and a modern economy bound to accept the inconvenience of these types of statutes popping up from time to time and disrupting the orderly development of the law? I suggest not. 54 36. It is necessary to take into account that “these statutes were enacted by a parliament representing other voters than those in British Columbia in another era for the purposes necessary to that society at that time.” 55 Moreover, a legislature must know its own laws in order to pass internally consistent modern statutory law. 56 When determining whether to add to, amend or repeal a law, a legislature should not need to concern itself with obscure and unknown English statutes in order to evaluate the wisdom of the contemplated course of action. Accordingly, it should be sufficient for a
50 Saskatchewan Law Reform Commission, Report on Disposal of English Statute Law in Saskatchewan (Saskatoon, 2006) at 4; see also pages 2, 3 and 8. 51 Coté, supra note 2 at 84 52 Secession Reference , supra note 18 at para 70. 53 Ibid (emphasis added). 54 Bouck, supra note 2 at 75. 55 Ibid at 83. 56 Lévis (City) v Fraternité des policiers de Lévis Inc , [2007] 1 SCR 591 at para 89. See also P-A Côté, Interprétation des lois , 4 th ed (Montreal: Thémis, 2009) at para 1272 [P-A Côté]; R Sullivan, Sullivan on the Construction of Statutes (Markham: Lexis Nexis, 2005) at 329 [Sullivan].
12 legislature to consider its own statutory laws and the common law when setting out to reform an area of the law. Once a legislature has ventured into an area, any English statute occupying the same field and potentially in force in Canada through the law of reception must be superseded by the modern Canadian legislation.
37. Indeed, the notion that the Parliament at Westminster may (unknowingly) bind a Canadian province (also without its knowledge), some 300 years after the events in England that justified the legislation, with laws that are impossible for the population to know, and despite provincial legislation on the subject-matter, goes against the basic tenets of a democracy. 57 The more expansive the approach to the law of reception, the more serious the offence to the constitutional principle of democracy. As a matter of access to justice, it is of the most basic necessity that litigants be able to know, by reasonable means, the statute law in force. In this case, the Appellants were surprised when the Respondents invoked the 1731 Act . Prospective plaintiffs ought to be able to easily determine what their rights are and whether they have been violated. Defendants ought to be able to determine the case they have to meet. No deep-pocketed party ought to be able to delay or complicate litigation by imposing on another party an obscure, impractical and costly historical review of long ago repealed English statutes. Lawyers must be able to reasonably advise their clients as to their legal rights and obligations.58 This case demonstrates that, in 2013, it is possible for a litigant to identify and rely on an obscure English statute, when none of the statutes passed by the provincial Legislature provide a legal basis for the relief sought, merely because the provincial Legislature has not explicitly repealed the ancient statute.
c) Other Commonwealth Jurisdictions Have Recognized the Need for Reforms 38. Canada seriously lags behind its Commonwealth counterparts. In 1881, New Zealand was the first to undertake reforms to identify English statutes in force in that jurisdiction.59 The first legislative effort to conclusively address the English statute law in force was undertaken by the Australian state of Victoria, based on a report which took into account over seven thousand (7000) English statutes. A list of the statutes still in force was passed and most of the remaining English statutes that could be identified were repealed. Victoria enacted further legislation in 1980, seeking to prevent as many English statutes as possible from being in force in that jurisdiction.60 Law Reform Commissions in
57 See Reference re Canada Assistance Plan (BC) , [1991] 2 SCR 525 at 548-49. 58 Cahill, supra note 25 at 131. 59 Status of English Statute Law , supra note 2 at 9-11. Today, the Imperial Laws Application Act 1988 , No 112 specifies which English statutes are in force in New Zealand and declares all others not to be in force. It must be noted that, pursuant to s. 2, “Imperial enactments” are not restricted to Imperial statutes in force prorio vigore , but include all English statutes. 60 Status of English Statute Law , supra note 2 at 9-12.
13 New South Wales, the Australian Capital Territory, Queensland, and South Australia have all issued reports on the subject.61
39. Similar reforms have been undertaken – either by Law Reform Commissions, Statute Revision Committees, or Legislatures – in India, Papua New Guinea, Sarawak, Hong Kong, Gibraltar, and Western Nigeria. 62
44. As the various reform efforts demonstrate, it is a lengthy, arduous and complex process to determine which ancient English statutes may be in force in a jurisdiction. Moreover, it is not possible to formulate a comprehensive and accurate list of the English statutes in force in England on a particular date before 1870. The colossal exercise of compiling English statutes potentially in force may be useful when domestic legislation remains relatively incomplete. However, once a domestic legal system is mature and developing entirely independently from English statutes in force in the nineteenth century (and without reference to these), it becomes necessary to adopt a strict and principled approach to determine whether such English statutes have normative force in Canada today.
d) A Strict and Principled Test for the Reception of English Statutes is Needed
45. Any reform of the law of reception must, of course, be sensitive to the fact that certain English statutes may constitute an established feature of the Canadian legal system (e.g., Statute of Uses , 1535). 63 Nevertheless, the possible existence of a handful of essential English statutes cannot justify an unduly expansive approach to reception that encompasses a plethora of ancient English statutes, which are often impossible to identify and of no utility today. A strict and principled test for reception would preserve what is necessary, while allowing this country to cut itself free from the deadweight of obscure statutes enacted by a foreign and temporally distant English Parliament. It would focus on the purpose of the law of reception and the purpose of the English statute. It would consider the relevance and applicability of the English statute to contemporary circumstances, and, having established its applicability, incorporate only what was necessary to fill a legal void or address a significant uncertainty. Such an approach is dictated by the constitutional principles of the rule of law and democracy – because the law of reception tends to offend these principles, its scope must be limited by a standard of necessity, that is, what is required to preserve the rule of law.
61 Ibid at 11. 62 Ibid at fn 31. 63 Ibid at 56-61.
14 3) Judicial Reform is Available Inter Alia because Reception Statutes Merely Codify the Common Law 46. There is ample authority for the proposition that reception statutes merely codify the common law governing the reception of English law. 64 As J. E. Côté has explained (emphasis added):
What is the general effect of the wholesale introduction of English law into a colony by the terms of a statute or prerogative instrument? Can one generalize as to this topic? After all, the wording of the various statutes introducing English law into different colonies vary somewhat. Some mention only common law and equity, while others mention statutes too; the simplest ones just introduce ‘the law of England.’ The best approach to the problem is that laid down by the Full Court in New South Wales as early as 1833, in Macdonald v. Levy . There Forbes C.J. pointed out that the statute in question was passed after the establishment of a settled colony. As there were well-settled rules governing the reception of English law in such a colony, and as the words of the statute were not in any manner inconsistent with the common law, the Court held that the statute was only intended to confirm the common-law rule, not to alter it. Therefore, the meaning of “applicability” of English statutes would be the same as that of the common law, as expounded by Blackstone. Therefore, because of Macdonald v. Levy and the other cases mentioned above a minute examination of the words of a statute introducing English law is probably ill advised, despite what some modern writers urge. After all, Parliament is presumed not to intend to change the common law by unclear words. 65 47. Indeed, even in jurisdictions where the statute does not expressly refer to a criterion of applicability to local circumstances, the courts have read in such a criterion. 66 As such, “the English Law Ordinances and English Law Acts are simply codifications of the common law principle except that they establish a fixed and certain cut-off date .” 67 In British Columbia, that date is November 19 th , 1858. Reception statutes merely confirm the common law and, as such, the rules of reception are common law rules that may be shaped and developed by the courts. It is therefore open to this Court to articulate the circumstances that will justify certain English statutes being held to be in force in Canada.
4) The Approach Proposed by the Appellants
48. The Appellants submit that this Court should adopt the test outlined below. The test is strict because it requires that an English statute be both applicable and necessary to local circumstances to be in force. It is principled because it evaluates applicability and necessity purposively, in accordance with constitutional principles and based upon current local circumstances, thereby taking into account changing social realities. This approach can practically and sensibly be adopted for all Canadian jurisdictions.
64 Glenn, supra note 24 at 276; Côté, supra note 2 at 36-37, 49; Bouck, supra note 2 at 78. 65 Côté, supra note 2 at 50-51. 66 Ibid at 50 (“Ontario courts have repeatedly held various English statutes not to be in force because inapplicable”), citing Hixon v Reavely (1904), 9 OLR 6 (HCJ); Mercer v Hewston (1859) 9 UCCP 349; Doe d. Anderson v Todd (1846) 2 UCQB 82 at 86-87; See also Glenn, supra note 24 at 272. 67 Bouck, supra note 2 at 78 (emphasis in original); see also Côté, supra note 2 at 36: “in most settled colonies there has intruded a statute, sometimes local and sometimes Imperial, confirming the reception of English law, and defining exactly the date as of which English law has been received” (emphasis added).
15 a) “So Far As They are not from Local Circumstances Inapplicable ”
49. Applicability to local circumstances is a fundamental condition for the reception of English statutes. The need for such a criterion was recognized early on by Blackstone. 68 The criterion was expressly adopted in the language of s. 2 of the Law and Equity Act . It is imposed even in jurisdictions where it is not expressly mentioned in the reception statute. 69
i) Applicable and Necessary
50. The Appellants submit that, when determining whether or not an English statute is in force, courts should adopt the standards of applicability and necessity articulated in Uniacke v Dickson ,70 a seminal decision of the Nova Scotia Court of Chancery on the law of reception. According to the unanimous view of Chief Justice Haliburton and Justice Hill, English statute law should not be held to be in force in the province unless it is “obviously applicable and necessary.” 71 The Appellants submit that this strict test of applicability and necessity remains appropriate today. In coming to this standard in 1848, Justices Haliburton and Hill were alive to many of the problems inherent to the reception of English statutes. Chief Justice Haliburton cautioned that:
The statute law emanates from the wisdom of the legislature of the day, varies with varying circumstances, and consists of enactments which may be beneficial at one time and injurious at another – which might advance the interest of one community, and prove ruinous to those who were differently situated.72 51. Even in 1848, Justice Hill was concerned that it was not realistic to expect Nova Scotians to know the contents of statutes passed by the Westminster Parliament (emphasis added):
It is, I think, also beyond question, that no professional man if employed to investigate Dickson ’s title would have dreamed of these two imperial statutes standing in the way of a perfect title, or even been aware of their existence.73 52. The concept of applicability should be understood to focus primarily on the purpose of the English statute. 74 As the Saskatchewan Law Reform Commission explained,
There is little question that the applicability test requires consideration of both the purpose of the statue under consideration in its English context, and the social and physical conditions in the jurisdiction where the statute is to be applied.75
68 Blackstone, Commentaries on the Laws of England, 15 th ed (London: Strahan, 1809) Book I at 107; Côté, supra note 2 at 66. 69 Côté, supra note 2 at 50, citing Hixon v Reavely (1904), 9 OLR 6 (HCJ); Mercer v Hewston (1859) 9 UCCP 349; Doe d Anderson v Todd (1846) 2 UCQB 82 at 86-87. See also Glenn, supra note 24 at 272. 70 (1848), 2 NSR 287 [ Uniacke ]. 71 Ibid at 289 (per Haliburton CJ) (emphasis added) and also at 302 (per Hill J). 72 Ibid at 290. 73 Ibid at 298-299. Despite the reference to “imperial statutes,” Imperial statutes in force proprio vigore were not at issue in this case. The statutes at issue were simply English statutes. 74 Côté, supra note 2 at 68-69.
16 53. More particularly, the purpose of the statute depends upon the mischief it was intended to cure. If no such mischief exists in the Canadian province, the English statute should normally be held to be inapplicable. Indeed, this rule was very clearly applied by the Upper Canada Court of Queen’s Bench in Leith v Willis (our emphasis):
[…] I am of opinion that the British act does not prevent the plaintiff recovering. It was passed in England to meet a particular evil, which was stated to be increased there of late, among a particular class of the inhabitants. We cannot say judicially that the circumstances so far correspond in this province as to make it a reasonable intendment that a statute passed to meet such exigency in England is to be treated as a part of the general statute law of England, intended to be introduced into this province. The main scope of the statute is for purposes wholly foreign to us; not one other clause, I think, can be considered in force here. It is derogatory to the principles of the common law, for it restrains a man from recovering a debt which may be lawfully contracted; he is not prohibited to sell liquors to a less amount than 20s. at a time. 76 54. The criterion of necessity must be evaluated in a purposive, principled and pragmatic manner. As a matter of principle, necessity must be interpreted in light of constitutional principles and Charter values. An English statute should not be considered “necessary” today in a Canadian jurisdiction if it offends these principles and values. Practically, a court should look to the effects of the English statute not being in force – will this throw the law into a state of confusion, create an unworkable void or otherwise work an injustice? If not, the Appellants submit that the English statute should not be considered necessary and there would therefore be no justification for declaring it in force in Canada today. A standard of necessity will ensure that those English statutes that truly form an inextricable part of domestic law will be in force, while going a long way towards preventing deep-pocketed parties from relying on obscure English statutes having no utility in Canada.
ii) Current Local Circumstances
55. Finally, applicability and necessity to local circumstances should be determined based upon current local circumstances (i.e., the date at which the facts giving rise to the present cause of action arose, and not some arbitrary cut-off date, such as British Columbia’s November 19, 1858).
56. According to J.E. Côté, when it comes to the point in time for evaluating the domestic suitability of English law, the reference point must be either the conditions in the colony at the cut-off date (in British Columbia, November 19, 1858) or the date at which the facts giving rise to the present cause of action arose. Although the first option, the “infant colony” theory, “has quite a body of authority in support of it [,] […] there seem to be just as many authorities against this view and in favor of applicability from time to time, and the arguments for this latter view seem more
75 Status of English Statute Law , supra note 2 at 36. 76 [1836] OJ No 53 (QB) at 102-103 [ Leith v Willis ].
17 compelling.” 77 J.C. Bouck argues forcefully in favour of referring to the date at which the cause of action arose. 78 He defends this approach on two major grounds. First, it would be more consistent with the approach applied to the reception of common law rules. 79 Second, looking at current local circumstances avoids a “quagmire of evidentiary law.” 80 It was relatively easy for British Columbia’s first judges to take judicial notice of the conditions in British Columbia in 1858, since they had personal experience of them. Most of those first judges had been trained in England and could therefore compare the local circumstances to those in England. The same would not be true for a judge today engaged in the same exercise. 81 Today, even if some indication of circumstances in British Columbia in 1858 exists, particular facts as they relate to the subject-matter of a specific English statute would have to be proven. It will therefore be necessary to perform an anthropological exercise not unlike the next to impossible task of producing conclusive evidence from pre-contact times about the practices, customs and traditions of [First Nation] communit[ies]. 82 These evidentiary problems can only be expected to get worse with time, and will become insurmountable, if they are not so already. Such fruitless inquiries could be avoided by making clear that the relevant local circumstances are those at the time the cause of action arose.
57. Looking at current local circumstances is more in keeping with the rationale for the law of reception. Reception is necessary when there is a current void or uncertainty in the law. It is irrelevant that there may have been a void at an arbitrary cut-off date, such as British Columbia’s November 19, 1858.
58. Moreover, this approach is also consistent with the language of s. 2 of the Law and Equity Act , which specifically uses the present tense “are not from local circumstances inapplicable” (emphasis added). According to s. 7 of the Interpretation Act (emphasis added),
(1) Every enactment must be construed as always speaking. (2) If a provision in an enactment is expressed in the present tense, the provision applies to the circumstances as they arise.83 As J.C. Bouck points out, this language means that “the local circumstances” are to be looked at “as they arise,” not “as they were in 1858.” 84
77 Côté, supra note 2 at 66-67. Côté cites the Privy Council decision in Cooper v Stuart (1889), 14 App Cas 286 at 293 as a highly persuasive authority for this approach. 78 Bouck, supra note 2 at 79. 79 Ibid . 80 Ibid at 81 81 Ibid at 79-80. 82 R v Van der Peet , [1996] 2 SCR 507 at para 62; Bouck, supra note 2 at 79-80. 83 RSBC 1996, c 238.
18 59. Indeed, Uniacke v Dickson provides additional support for an approach that looks to the current local circumstances. Justice Hill concluded that the statutes at issue in that case were not in force in Nova Scotia because “neither of these statutes was applicable and necessary to our state and condition when the province was first settled, nor at any time since, and that the rights of the crown [sic ] are amply protected and secured by the common law.” 85 Chief Justice Haliburton affirmed that:
Every year should render the Courts more cautious in the adoption of laws that had never been previously introduced into the colony, for prudent judges would remember that it is the province of the Courts to declare what is the law, and of the legislature to decide what it shall be. 86 J.C. Bouck explains that, “[i]n Uniacke v. Dickson […] [i]t seems to have been taken for granted the local circumstances to be looked at were those in 1848 and not 1758 because the present tense is used throughout.” 87 Significantly, if current local circumstances are considered, the courts will be able to reevaluate the applicability and necessity of an old English statute in light of evolving social realities. J.C. Bouck provides an account of the manner in which this would take place:
Because the English statutes became part of the law of British Columbia through the process of the common law, I submit they can be removed using the same method when it is shown they no longer serve our society. It should not necessarily require an Act of the provincial legislature to remedy the defect. For example, if a decision of our courts in 1920 held a pre-1858 English statute applied to the circumstances of a case decided in that year, then there is nothing particularly wrong for a British Columbia court to conclude in 1979 that circumstances have change in this province since 1920 and so the pre-1858 English statute is no longer part of the law of British Columbia. Such a process is frequently followed with respect to common law principles and it makes equal sense to use it when looking at pre-1858 English legislation. 88 60. This approach is entirely sensible. After all, the decision that a particular English statute is applicable to local circumstances is a judicial determination. Reevaluating prior judicial determinations in light of new social realities is a process that is familiar to the courts. 89 When determining whether ancient English statutes are in force in a province, courts must similarly be able to reconsider the question of applicability and necessity to local circumstances in light of modern social realities. The evaluation of local circumstances to determine to what extent (“so far as”) 90 the English statute is applicable and necessary to local circumstances permits the courts to adapt the English statute to the domestic context. As J.E. Côté explains,
84 Bouck, supra note 2 at 83. 85 Uniacke , supra note 70 at 302 (emphasis added). 86 Ibid at 291. 87 Bouck, supra note 2 at 82. 88 Ibid at 86. 89 For example, the traditional presumption that a father intends to benefit his children, thereby avoiding a resulting trust for gratuitous transfers (presumption of advancement) was recently modernized by this Court to extend to mothers and exclude independent adult children ( Pecore v Pecore , 2007 SCC 17 at paras 27-41). 90 Law and Equity Act , supra note 1, s. 2.
19 Indeed, the consequences of rules not being suitable or ‘not applicable’ (as the authorities often say) is not limited to the rules not being in force. In certain circumstances, a rule or statute may be in force, but with modifications calculated to adapt it to the circumstances of the colony. Sometimes this adaptation merely entails the omission of some minor parts of the rule or statute, but it can mean more than that. It may entail actual changes in some rules, or rules which are the very reverse of the English rule. 91
b) The English Law has Not Been Modified or Altered by Domestic Legislation
61. In addition to considering applicability and necessity to local circumstances, a court must consider whether the English statute has been displaced by domestic legislation. The Court of Appeal, effectively equating received English statutes with those passed by the British Columbia Legislature, required an express repeal or a direct contradiction before the English statute would be held not to be in force. Other Canadian courts, along with academic commentary, have advocated for a more flexible, purposive approach. This latter approach recognizes that a received English statute will be found to be implicitly displaced when the local Legislature has occupied the field of legislative activity, in a fairly comprehensive fashion, even if there is no actual conflict or inconsistency between the two statutes. 92 The Appellants submit that the latter approach is to be preferred, particularly because such an approach gives appropriate priority to the democratic will of the local Legislature.
62. The Court of Appeal in this case required either direct conflict between the 1731 Act and local legislation or an express repeal of the 1731 Act . In doing so, the Court of Appeal took too narrow a view as to whether the 1731 Act had been superseded by the comprehensive legal and regulatory framework governing civil procedure in British Columbia. This approach is based upon the erroneous assumption that the British Columbia Legislature is capable of knowing the entirety of English statutes in force in England on November 19, 1858. It is neither realistic, nor reasonable to expect a legislature in Canada to turn its mind to every obscure English statute that was in force on a given cut-off date and which might affect a subject matter upon which the Legislature decides to legislate. As noted by the Saskatchewan Law Reform Commission:
[…] very few English statutes have been expressly affected by Saskatchewan legislation. Unfortunately, the relationship between Saskatchewan statutes and the received law often depends upon whether Saskatchewan legislation has impliedly repealed an English statute, and that is a question which does not admit of an easy answer. 93
91 Côté, supra note 2 at 62. 92 Status of English Statute Law , supra note 2 at 5, 45. 93 Status of English Statute Law , supra note 2 at 44-45.
20 63. The effect of the Court of Appeal’s requirement of either express repeal or a strict test of direct conflict is to inadvertently allow many obscure English statutes to populate the Canadian legal landscape, even in areas that are subject to extensive local legislation. 94
i) The Legislation
64. No Canadian reception statute provides that English statutes eligible for reception can be displaced by way of express repeal only. 95 Thus, s. 2 of the Law and Equity Act does not insist on explicit repeal as the only means by which the British Columbia Legislature can prevent an ancient English statute from being in force in the province. In fact, s. 2 of the Law and Equity Act does not even mention “repeal;” rather, alteration or modification is all that is required. The use of the words “modified” and “altered” necessarily means that English statutes can be displaced by something less than outright, explicit repeal or direct contradiction. If the British Columbia Legislature had meant repeal or absolutely inconsistent, it would not have used the very different words “alter” or “modify.”
ii) The Jurisprudence
65. Several cases in Canada and in other Commonwealth jurisdictions have adopted the flexible approach to the implicit displacement of English statutes, for which the Appellants advocate. In Uniacke , Chief Justice Haliburton explained that the advent of domestic legislation on a subject matter should displace the English statute:
The Supreme Court has generally considered that when the local legislature has legislated upon any particular subject, relative to which English statutes had previously existed, that the colonial Courts are to be guided by the provincial and not the English statutes in deciding questions upon such subjects. 96 66. In R v Jebbett , 97 the British Columbia Court of Appeal unanimously concluded that, had provisions of the Magna Carta granted a person the right to park wherever one wishes, those rights had
94 For example, applying the Court of Appeal’s test, The Night Poaching Act , 1844 c 29, which provides that the owner or occupier of a land adjacent a public land where someone poaches game or rabbits has the authority to seize and apprehend the poacher, is in force. It would give a land owner whose land borders public land (including public roads) the authority to arrest poachers, even though the only citizen’s arrest provisions are found in the Criminal Code , RSC 1985, c C-46 (s. 494) and the current British Columbia Wildlife Act , RSBC 1996, c 488 (s. 87) states that a constable or a conservation officer may arrest a person committing an offence under the act. Similarly, the House of Commons (Clergy Disqualification) Act , 1801, c 63 might also be declared in force. That statute provides that members of the clergy are not entitled to be elected to the House of Commons, despite the Act of Settlement , 1700, c 2, stating that natural-born subjects qualified. No federal legislation has expressly repealed that statute and it could simply be interpreted as an additional item to the list of ineligible persons under s. 65 of the Canada Elections Act , SC 2000, c 9 (and therefore simply another limit to s. 3 of the Charter , subject to a s. 1 analysis). 95 See the Property and Civil Rights Act , supra note 28; the Court of Queen’s Bench Act , supra note 28; the Northwest Territories Act , supra note 28; the Saskatchewan Act , supra note 28; the Yukon Territory Act , supra note 28; the Nunavut Act , supra note 28; and the Quebec Act , supra note 28. 96 Uniacke , supra note 70 at 292, per Haliburton CJ; see also the comments of Hill J at 302. 97 R v Jebbett , 2003 BCCA 69 [Jebbett ]; see also R. v Lindsay , 2008 BCCA 30.
21 to be taken to have been “modified” by the passage of the British Columbia Motor Vehicle Act and subordinate legislation governing traffic circulation.
67. In Royal Bank of Canada v Pischke et al , the Saskatchewan District Court held that an English statute which permitted a plaintiff to require insurance moneys for premises destroyed by fire to be used in the rebuilding of premises, rather than being paid to a defendant or his assignees, had been implicitly repealed by The Saskatchewan Insurance Act :98
[…] the question of inconsistency between statutes is one which goes much further than the mere question of the words employed […] where the Legislature has by statute made a classification of rights, obligations, persons, conditions, or any other matter or thing, and then by subsequent legislation dealing with the same subject-matter has altered or modified the former classification, it at least opens the door to an inference that such modification was intentional, and that to the extent thereof repeal is implied. To the contention that repeal in such a manner is not favoured the obvious answer in such a case is that every Act is made either for the purpose of changing the law, or for better declaring it. 99 68. The Saskatchewan Court of Queen’s Bench later confirmed that it had not been necessary in Pishke to determine that the Saskatchewan insurance legislation was a complete code to find an implied repeal, but simply to look at the intentions of the Saskatchewan Legislature when it adopted the legislation. 100
69. The decision in Rasbeck v Desabrais provides the valuable lesson that applicability and legislative displacement of the English statute are not hermetically sealed inquiries. Rather, the applicability and necessity of the English statute must be analyzed in the context of the local legislative framework. 101 A different and independently adequate local legislative regime should be compelling evidence that the English statute is neither applicable nor necessary.
70. Because of significant reforms in other Commonwealth jurisdictions (New Zealand and Australia in particular), the interpretive challenges in determining whether an English statute is in force will not arise as frequently there as they have in Canada. However, even courts in those jurisdictions have endorsed the flexible approach to implied repeal, which was rejected by the Court of Appeal in this case. The Queensland Court of Criminal Appeal, in R v Walker , concluded that Magna Carta , if it ever formed part of the law of Queensland, had long since been displaced by local statutes. 102 Implied
98 RSS, 1930, c 101. 99 [1933] 1 WWR 145 at para 17 [Pischke ]. 100 Wawanesa Mutual Insurance Co v Co-operative Fire and Casualty Co , 1980 SJ No 614 at para 13 (QB) [ Wawanesa ]. 101 Raisbeck v Desabrais , [1970] AJ No 166 at paras 16-19 (SCAD) [ Raisbeck ]. 102 (1988), 2 Qd R 79 at 85.
22 repeal has also been endorsed by the English cases the India ,103 Ellen Street Estates ,104 and Thoburn v Sunderland City Council .105
iii) The Commentators
71. According to R.G. Herbert, consideration must be given to whether subsequent legislation has occupied the field, thus rendering the English statutory law inapplicable. 106 According to J.E. Côté, local legislation need not expressly repeal an English statute for the English statute to be displaced. Rather, “[i]t is purely a question of statutory construction whether this is the case or not.” 107 Section 2 of the Law and Equity Act clearly assumes that received English statutes would ultimately be superseded by legislation enacted by the domestic Legislature itself. As H.P. Glenn observes, “life in the early North American colonies required very little by way of formal, articulated law,” 108 and so the entry into force of English statutes provides a relatively simple way to fill the initial legal vacuum, avoid chaos, and thus preserve the rule of law.109 However, those initial days of a new legal system having passed, English statutes ought to yield “to local statute, as the clearest evidence of local particularity.” 110
iv) Mercure is not an Applicable Precedent to this Case
72. The Court of Appeal relied heavily on this Court’s decision in R v Mercure .111 However the law of reception of English statutes was not at issue in Mercure . Rather, Mercure dealt only with the specific statutory language in s. 16 of the Saskatchewan Act , providing for the continuation of laws after Saskatchewan was carved out of the Northwest Territories in 1905. Mercure therefore only dealt with the continuation of s. 110 of the North West Territories Act in the newly created province.
73. Section 16 of the Saskatchewan Act and s. 129 of the Constitution Act, 1867 both provide for the continuation of laws, which is manifestly very different from the rules governing the reception of English statutes. Section 16 of the Saskatchewan Act 112 provides:
103 The India (1864), 167 ER 345 at 346 (UK HC Adm) [the India ]. 104 Ellen Street Estates , [1934] 1 KB 590 (UKCA). 105 Thoburn v Sunderland City Council , [2002] EWHC 195. 106 RG Herbert, “A Brief History of the Introduction of English Law into British Columbia” (1953-1958) 2 UBC Legal Notes 93 at 100 [Herbert]. 107 Côté, supra note 2 at 82. 108 Glenn, supra note 24 at 273. 109 Re Manitoba Language Rights , [1985] 1 SCR 721 at para 55. 110 Glenn, supra note 24 at 272. 111 [1988] 1 SCR 234 [ Mercure ]. 112 Saskatchewan Act , supra note 28.
23
16. (1) All laws and all orders and regulations made 16. Est assurée dans la province, comme si ni la présente thereunder […] existing immediately before the coming loi ni la Loi sur l’Alberta n'avaient été adoptées, la into force of this Act in the territory hereby established continuité des lois et de leurs textes d’application […] en as the province of Saskatchewan, shall continue in the vigueur […] lors de l’entrée en vigueur de la présente loi, said province as if this Act and The Alberta Act had not dans le territoire constitué en province de la Saskatchewan. been passed; subject, nevertheless, except with respect to Le Parlement du Canada ou la Législature de la such as are enacted by or existing under Acts of the Saskatchewan peut toutefois en ces matières, dans le cadre Parliament of Great Britain, or of the Parliament of the de sa compétence, procéder à toute mesure d'abrogation, de United Kingdom of Great Britain and Ireland, to be modification, de suppression ou de révocation, sauf s’il repealed, abolished or altered by the Parliament of s’agit de lois ou autres textes édictés, de pouvoirs ou Canada, or by the Legislature of the said province, fonctions conférés ou de tribunaux ou personnels mis en according to the authority of the Parliament or of the said place sous le régime de lois du Parlement de Grande- Legislature […]. Bretagne ou du Parlement du Royaume-Uni de Grande- Bretagne et d’Irlande […].
The language of s. 129 of the Constitution Act, 1867 is just as clear. 113 Unlike the law of reception, which is fundamentally defined by the requirement of applicability and necessity to local circumstances, these particular continuation provisions make it very clear that the law was to remain unchanged, 114 i.e., to continue as if nothing had changed. The difference is considerable. The law of reception inherently recognizes that English statutes are foreign and likely inappropriate to local circumstances, in whole or in part. Conversely, s. 16 of the Saskatchewan Act and s. 129 of the Constitution Act, 1867 very expressly treat the continued law exactly the same as if it were locally enacted – because it was.
5) Application to this Case
a) The 1731 Act is Neither Applicable nor Necessary in British Columbia
74. The 1731 Act is neither applicable nor necessary in British Columbia. First, the 1731 Act is not applicable in British Columbia because it was enacted for a purpose which is wholly foreign 115 to the province, because the mischief the statute sought to remedy never existed in British Columbia. The purpose of the statute was to end the then prevalent practice in English common law courts of using archaic languages that were only understood by the legal profession. The use of Latin, Law French and the illegible “Court Hand” rendered proceedings incomprehensible to the public and the actual parties before the courts. 116 The preamble to the 1731 Act makes this specific purpose abundantly clear (emphasis added):
113 30 & 31 Victoria, c 3. 114 PW Hogg, Constitutional Law of Canada, loose-leaf (consulted January 7, 2013) (Toronto: Carswell, 2007) at para 2.4. 115 Leith v Willis , supra note 76 at 102-103 (emphasis added). 116 See Baker for the use of Latin and Law French in the English common law courts prior to the 1731 Act . The use of French was introduced into the royal courts in England sometime after the Norman conquest of 1066. Law French was a distinct hybrid dialect, with Norman, Picard and Angevin influences, which evolved its own unique vocabulary to describe
24 WHEREAS many and great Mischiefs do frequently happen to the Subjects of this Kingdom, from the Proceedings in Courts of Justice being in an unknown Language, those who are summoned and impleaded having no knowledge or understanding of what is alleged for or against them in the pleadings of their Lawyers and Attornies, who use a Character not legible to any but Persons practicing law: To remedy these great Mischiefs, and to protect the Lives and Fortunes of the Subjects of that Part of Great Britain called England , more effectually than heretofore, from the peril of being ensnared or brought in danger by forms and proceedings in courts of justice, in an unknown language, be it enacted […] that […] all Writs, Process and Returns thereof, and Proceedings thereon, and all Pleadings, Rules, Orders, Indictments, Informations, Inquisitions, Presentments, Verdicts, Prohibitions, Certificates, and all Patents, Charters, Pardons, Commissions, Records, Judgments, Statutes, Recognizances, Bonds, Rolls, Entries, Fines and Recoveries, and all Proceedings relating thereunto, and all Proceedings of Courts Leet, Courts Baron and Customary Courts, and all Copies thereof, and all Proceedings whatsoever in any Courts of Justice within that part of Great Britain called England , and in the Court of Exchequer in Scotland , and which concern the Law and Administration of Justice, shall be in the English Tongue and Language only, and not in Latin or French , or any other Tongue or Language whatsoever, and shall be written in such a common legible hand and character […] and not in any hand commonly called Court Hand , and in words at length and not abbreviated […]. 75. The 1731 Act was enacted specifically to remedy the historical problem of the use of languages incomprehensible to the public in the English common law courts of the period. It would be a severe anachronism and contrary to the very words of the statute to suggest that the purpose of the 1731 Act was to promote absolute linguistic uniformity for all aspects of a proceeding (including the introduction of documentary evidence) and to eliminate the inherent judicial discretion in this regard. Ironically, the purpose of the 1731 Act was to make the court process more accessible to ordinary citizens by ensuring that it was conducted in a language they understood. As such, to require French speaking parties appearing before a French speaking judge to translate all of their documents into English at considerable expense, for no purpose because the Respondents have the institutional capacity to function in French, actually offends the essential objective of 1731 Act .
76. Clear evidence that the 1731 Act ’s purpose was to suppress the use of incomprehensible archaic languages is that the statute did not apply to the courts of Chancery. Its application is expressly limited to certain courts: “Courts Leet, Courts Baron and Customary Courts, […] Courts of Justice within […] England , and […] the Court of Exchequer in Scotland .” This is not surprising because the mischief the statute sought to address did not exist when the Courts of Chancery exercised their equitable jurisdiction. In these circumstances, except in some few instances, 117 everything already took place in English.118 Similarly, there is no problem in the British Columbia courts with the use of archaic Law French, Latin or Court Hand. The 1731 Act is therefore inapplicable in British Columbia. Indeed, the very purpose of the 1731 Act , which was to facilitate access to justice for the parties before the
common law concepts. It was not a spoken language in France ( Baker , supra note 37 at 16-24). Court Hand was an ancient script used for writing records and legal proceedings, which after being banned by the 1731 Act required an antiquarian to decipher (Blackstone, Book III, supra note 39 at 323). 117 J Mitford, A Treatise on the Pleadings in Suits in the Court of Chancery, by English Bill, 2 nd ed (Dublin: 1795) at 7-8. 118 Baker, supra note 38 at 15; Holdsworth, supra note 38 at 480).
25 common law courts, would be frustrated if it were applied in the manner suggested by the Appellants (i.e., to remove from the judge any discretion to admit into evidence untranslated documents in a language other than English). Litigants will be strapped with prohibitive translation costs even when the interests of justice do not require translation.
77. Second, the 1731 Act is not necessary in British Columbia. The Appellants submit that English statutes regulating civil procedure should never be regarded as “necessary.” The reason for this was clearly articulated by the Saskatchewan Law Reform Commission (emphasis added):
Matters of practice and procedure are within the inherent jurisdiction of the superior courts, supplemented in Saskatchewan and most other jurisdictions by the power to make rules of court. Colonial courts can be expected to adopt English procedure, insofar as it is suitable, and to modify it for their own purposes. The first Rules of Court in Saskatchewan were substantially based on the English Rules of Court then in force. This is not a case of reception of English law in a true sense, and in fact makes formal reception undesirable. If statutory rules are held to have been received, they may straightjacket the development of procedure adapted to the local court structure […]. Procedure generally requires no statutory foundation. The courts have inherent jurisdiction over procedural matters, and rule-making power is conferred by statute. On the other hand, it is clear that when a statute expressly sets out procedures, the court’s authority to determine procedure is ousted. It is undesirable to retain English procedural statutes as part of the law of Saskatchewan: the legislation may operate as a fetter on the court’s ability to adapt procedural law to changing circumstances.119 Thus, not only is the reception of English procedural statutes not necessary, it is undesirable. It is also difficult to imagine how the 1731 Act could be necessary to British Columbia’s courts when it was not even necessary for the English courts of Chancery at the time.
78. Moreover, the concept of necessity must be interpreted in light of constitutional principles and Charter values. An English statute should not be considered necessary in Canada if it offends our most basic constitutional principles and values. To assert that it is necessary to fetter the inherent jurisdiction of a superior court to manage its own processes (here by absolutely prohibiting them from admitting untranslated documentary evidence) offends the unwritten constitutional principle of judicial independence. 120 In this case, the 1731 Act limited the ability of a case management judge to make an order that would allow for a more efficient process. The Respondents’ position in this case implies that it is necessary to absolutely prohibit an official language minority asserting its Charter education rights against the government from tendering untranslated evidence in the minority official language. Such a position offends s. 16(3) of the Charter , which promotes the advancement toward substantive equality of the two official languages and which plays an important role in the interpretation of legislation that
119 Status of English Statute Law , supra note 2 at 43, 213-214. 120 Judges Reference , supra note 20 at para 83.
26 affects the use of English and French. 121 An absolute prohibition (irrespective of the linguistic abilities of the judge and the parties, or of considerations relating to access to justice and the cost of litigation) also offends the constitutional principle of the protection of minorities 122 and conflicts with Canada’s multicultural heritage, which is affirmed by s. 27 of the Charter .
79. Furthermore, the concepts of applicability and necessity must also be informed by the local legislation which exists on a subject matter. There exists a comprehensive body of local legislation governing procedure. The 1731 Act is not necessary because no unworkable void nor any other injustice would result if it was held not to be in force.
b) The 1731 Act has Been Implicitly Modified or Altered
80. The Appellants submit that this Court should focus on the intention of the British Columbia Legislature in enacting a comprehensive, thorough, and modern procedural framework for the courts of the province, which has now occupied the field. This Court should not give preference to a statute enacted almost 300 years ago by a distant Parliament, representing a different population, and rendered eligible for reception in British Columbia 150 years ago, for reasons that have long since ceased to be relevant. There exists today in British Columbia a regime of local legislation and rules that cover the same area as the 1731 Act . The Appellants submit that the British Columbia Legislature intended that the current procedural statutes and court rules occupy the entire field of procedural law, except to the extent that procedure is left to the discretion of the courts through the exercise of their inherent jurisdiction. The Appellants submit that the 1731 Act has been “modified or altered” 123 by the following statutes and rules:
a. The Evidence Act :124 codifies certain evidentiary principles and determines their manner of application in British Columbia; b. The Court Rules Act :125 sets out the mechanism for adopting the rules of court for British Columbia’s Court of Appeal, Supreme Court and Provincial Court; c. The ten (10) sets of rules of court currently in force in the province: 126 set out the rules governing court practices throughout the province, at all levels of court, to ensure the just, speedy, and inexpensive resolution of disputes;
121 Lalonde , supra note 16 at para 92. 122 Reference re Secession of Quebec , [1998] 2 SCR 217 at paras. 79-82. 123 Law and Equity Act , supra note 2, s. 2. 124 Evidence Act , RSBC 1996, c 124. 125 Court Rules Act , RSBC 1996, c 80 [ Court Rules Act ]. 126 Supreme Court Civil Rules , BC Reg 168/2009 [Supreme Court Civil Rules ]; Court of Appeal Rules , BC Reg 297/2001; Provincial Court (Adult Guardianship) Rules , BC Reg 30/2001; Provincial Court (Child, Family and Community Service Act) Rules , BC Reg 533/95; Provincial Court (Family) Rules , BC Reg 417/98; Small Claims Rules , BC Reg 261/93;
27 d. The Law and Equity Act : legislates the manner in which the superior courts’ equitable jurisdiction may be exercised in the province; e. The Supreme Court Act :127 sets out the powers, privileges, jurisdiction and composition of the Supreme Court and confirms that it continues as a court of original jurisdiction; and f. The Court of Appeal Act :128 sets out the powers, privileges, jurisdiction and composition of the Court of Appeal. 81. These statutes and court rules are far more specific and detailed than the general text of the 1731 Act and must therefore be taken to have supplanted the 1731 Act , which deals with procedure and rules of evidence before courts in the province. Where a local legislature has legislated upon a specific subject matter covered by an English statute, without adopting the provisions of that statute, it must be presumed that it intended to completely displace the English statute (emphasis added):
The British statute relied upon, on the contrary, puts the retailers fairly on their guard, for in the same act which regulates their licenses, they are expressly warned that they must not sell in small quantities on credit. If our parliament when they legislated on the subject, meant that the licenses to be taken out under their act should be attended with similar restrictions, they should have said so.129 82. Significantly, British Columbia’s Supreme Court rules were, for a long time, derivative of the English rules. However, in the 1970s, the rules were comprehensively overhauled to break with the antiquated English procedural law, culminating with the Supreme Court Rules , 1976 (“1976 Rules”):
These Rules came about through the combined efforts of members of the Bar and representatives of the Department of the Attorney-General. They are a recognition of the fact that up to the time of their passage the previous Rules of Court were by and large a copy of the English Rules of 1883. Because of their antiquity the Rules were becoming quite outdated. Patchwork amendments had been made to them over the years but the time finally came when this was not good enough and a complete overhaul was undertaken. A committee of the Attorney-General’s Department was struck and after study and consultation produced the 1976 Rules. 130 83. Accordingly, the 1976 Rules were intended to effect a fundamental reappraisal, which would displace archaic English procedural laws such as the 1731 Act . The 1976 Rules displaced even legislation because, in 1976 as today, the rules of court have the force of statute and legislative effect. 131
Supreme Court Family Rules , BC Reg 169/2009; Official Reporters Regulation , BC Reg 222/84; Family Relations Act Rules and Regulations , BC Reg 141/79; Patients Property Act Rules , BC Reg 311/76. 127 Supreme Court Act , RSBC 1996, c 443 [ Supreme Court Act ]. 128 Court of Appeal Act , RSBC 1996, c 77 [ Court of Appeal Act ]. 129 Leith v Willis , supra note 76 at 102-103. See also Côté, supra note 2 at 82 130 Lavaris v Macmillan Bloedel Ltd (1977), 81 DLR (3d) 197 (BCSC) at paras 10-11 (per Bouck J). See also T Schmidt and S Caird, “BC Rules of Court” (2002) 27 Can Law Lib Rev 218 at 220; Peter Fraser, “The New Rules of Court: the Background” (1976) 34 Advocate 117; JC Bouck and DW Roberts, Proposal for the Reform of the British Columbia Supreme Court Civil Rules (Vancouver: Foundation for Legal Research in Canada, 1972). 131 Boleak v Boleak , 1999 BCCA 776 at para 21; Callender v Callender Estate , [1999] BCJ No 1833 at para 50 (SC); Robitaille v Vancouver Hockey Club Limited , [1981] BCJ No 555 at para 45 (CA); Laird v Cypress Anvil Mining Corp , [1984] BCJ No 2721 at paras 5-7 (SC).
28 84. Moreover, the 1731 Act has been nullified by the provisions of the Law and Equity Act , which fuse the equitable and legal jurisdictions of the courts in British Columbia. 132 The 1731 Act never interfered with the inherent discretion of the courts of Chancery, in their equitable jurisdiction, as to the language of proceedings.
85. In sum, the 1731 Act has been displaced without the need for explicit repeal by the Legislature, 133 which in any event cannot be presumed to be familiar with obscure English statutes that were in force in England the eighteenth century.
D) The 1731 Act Does Not Prohibit the Admission of Documents in a Language Other than English, in the Absence of a Translation 86. In the alternative, should this Court conclude that the 1731 Act is in force in British Columbia, the Appellants submit that the 1731 Act does not prohibit the admission of untranslated documents in a language other than English.
87. None of the cases dealing with the language of proceedings in British Columbia addressed the admissibility of documentary evidence in a language other than English under the 1731 Act .134 Indeed, Re Poulin and Lajoie , which had to do with the right to a criminal trial in French, are outdated. They would necessarily be decided differently today given the subsequent amendments to the Criminal Code granting a right to a criminal trial in French, 135 analyzed at length in R v Beaulac , as well as the advent of the Charter .
88. Moreover, none of these cases involved a full consideration of the text of the 1731 Act . In Re Poulin , Lajoie , and Pelletier , the courts focused on the phrase “all Proceedings whatsoever” and did not address the enumerated examples of “proceedings” and court processes provided in the text of the 1731 Act . This approach is contrary to ejusdem generis rule of statutory interpretation. According to
132 Law and Equity Act , supra note 1, ss. 4, 5. 133 See the Law and Equity Act , supra note 1, s. 2; Jebbett , supra note 97 at para. 5; Pischke , supra note 99 at para 17; Wawanesa , supra note 100 at para 23; Raisbeck , supra note 101 at paras 38-40. 134 Re Poulin , [1968] BCJ No 92 (SC), aff’d [1968] BCJ No 95 (CA) [ Re Poulin ] is a criminal case, which does not deal with the admissibility of evidence, but with the right to a criminal trial in French, prior to amendments to the Criminal Code , SC 1953-54, c 51. R v Lajoie , BCJ No 494 (BCSC) also arose in the criminal context and the Court merely held that the Supreme Court of British Columbia was not bound by the Official Languages Act , RSC 1970, c O-2 (repealed in 1988) and had no discretion to order a trial in French. In McDonnell v Fédération des franco-colombiens , [1985] BCJ No 2740 (CCt) the Court held that s. 15 of the Charter did not extend to language rights and that a statement of defence falls within the scope of what is now Rule 22-3(2), as an initiating document prepared for use in court. R v Pelletier , 2002 BCSC 561 only deals with the possibility of having, in the criminal context, an application for a reduction in the number of years of imprisonment before eligibility for parole, heard in French. In that case, the Court held that the Criminal Code , RSC 1985, c C-46 ss 530, 530.1 provides a comprehensive regime in this context, and that an application for a reduction in the number of years before eligibility for parole did not fall within this regime. 135 Ibid .
29 this rule, when a clause sets out a list of specific words followed by a general term, the scope of the general term is limited to the genus of the specific enumeration that preceded it. 136 The detailed list of examples of “proceedings” in the 1731 Act does not extend to nor include evidence, let alone exhibits to an affidavit. The 1731 Act governs court proceedings, and does not address evidence at all (emphasis added):
WHEREAS many and great mischiefs do frequently happen to the subjects of this kingdom, from the proceedings in courts of justice being in an unknown language, […] all writs, process and returns thereof, and proceedings thereon, and all pleadings, rules, orders, indictments, informations, inquisitions, presentments, verdicts, prohibitions, certificates, and all patents, charters, pardons, commissions, records, judgments, statutes, recognizances, bonds, rolls, entries, fines and recoveries, and all proceedings relating thereunto, and all proceedings of courts leet, courts baron and customary courts, and all copies thereof, and all proceedings whatsoever in any courts of justice within that part of Great Britain called England, and in the court of exchequer in Scotland, and which concern the law and administration of justice, shall be in the English tongue and language only. 89. The definitions of “Proceeding”, “Procedure”, and “Procedural Law” are as follows (emphasis added):
Proceeding: “The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment; Any procedural means for seeking redress from a tribunal or agency; An act or step that is part of a larger action; The business conducted by a court or other official body.” 137 Procedure: “A specific method or course of action; The judicial rule or manner for carrying on a civil lawsuit or criminal prosecution – also termed rules of procedure.” 138 Procedural Law: “The rules that prescribe the steps for having a right or duty judicially enforced, as opposed to the law that defines the specific rights or duties themselves.” 139 90. The editors of The Law of Evidence in Canada draw a clear distinction between evidence as opposed to the rules governing court practice and procedure (emphasis added):
“The rules of evidence control the presentation of facts before the court. Their purpose is to facilitate the introduction of all logically relevant facts “without sacrificing any fundamental policy of the law which may be of more importance than the ascertainment of the truth.” What are the logically relevant facts in any particular case, whether civil or criminal, is decided by the substantive law governing the cause of action or offence set out in the proceedings or the charge, as the case may be. These matters can tangentially effect the evidentiary principles in any given case, but they do not make up a part of the law of evidence. Rules governing court practice and procedure can govern the conduct of litigation in a manner similar to evidentiary rules, but, again, these are matters ancillary to evidence law and are not considered in any detail in this text. Evidentiary principles, on the other hand, regulate (1) what matters are or are not admissible before the court, and (2) the method by which admissible facts are placed before it.” 140
136 National Bank of Greece (Canada) v Katsikonouris , [1990] 2 SCR 1029. 137 Black’s Law Dictionary, 8 th ed, sub verbo “Proceeding” [Black’s Law Dictionary]; Oxford English Dictionary, online, sub verbo “proceeding.” See also R v Lefebvre , [1982] AJ No 1009 (QB), where the Court concluded that a proceeding is the means whereby a court compels compliance with its demands, by way of writs, summons, etc. The Federal Court has interpreted “proceedings,” which is not a defined term in the Federal Court Rules , as amounting to initiating documents (R v Vaughan, [2000] FCJ No 311 at para 23 (TD)). 138 Black’s Law Dictionary, sub verbo “procedure.” 139 Black’s Law Dictionary, sub verbo “procedural law.” 140 Sopinka et al, The Law of Evidence in Canada, 2d ed (Markham: Butterworths, 1999) at 3: 1003-05 [Sopinka]. D Paciocco and L Stuesser, The Law of Evidence , revised 5 th ed (Toronto: Irwin Law, 2008) at 1 [Paciocco and Stuesser].
30 91. The rules governing court practice and procedure are separate from and ancillary to the law of evidence. Evidence is information, whether in the form of personal testimony, the language of documents, or the production of material objects, that is given in a legal investigation to establish the fact or point in question. 141
92. If the 1731 Act did extend to documentary evidence, the result would be absurd. The 1731 Act makes no mention of translations at all. Extending the 1731 Act to documentary evidence would mean that the original documents, in a language other than English, would be inadmissible because the language of the 1731 Act does not reasonably support a system of translations. However, this absurd result is easily avoided by an ordinary reading of the 1731 Act ’s express terms.
93. Moreover, the courts below adopted an interpretation of the 1731 Act that is at odds with how the statute was interpreted in England. J. Chitty explained in 1816 that, despite the general practice, there was no absolute rule that documentary evidence had to be translated into English (emphasis added):
The next general rule respecting the structure of the indictments is, that they must be in English […] But, if any document in a foreign language, as a libel, be necessarily introduced, it should be set out in the original tongue; and then translated showing its application; (s) but it is said to be both needless and dangerous to translate it. (t) In practice, however, the former is more usual.142 94. Indeed, several English cases have interpreted the scope of the 1731 Act very differently from the courts below. 143 In all these cases, the court allowed documentary evidence in French, notwithstanding that the 1731 Act was in force. None of these cases was considered by Willcock J or the Court of Appeal.
95. Finally, none of the cases relied on by the courts below gave any consideration to the purpose of the 1731 Act , which was to facilitate, not hinder, access to justice. Moreover, the courts below completely ignored the 1733 amendment to the 1731 Act , which permitted the use of languages other than English in order to improve access to justice and the efficiency of court proceedings. When the amendment is taken into account, it becomes clear that the 1731 Act must be construed restrictively where this is necessary to further the purposes of the 1731 Act and of the amendment.
141 Oxford English Dictionary, online, sub verbo “evidence.” 142 J Chitty, A Practical Treatise on the Criminal Law comprising the Practice, Pleadings and Evidence which occur in the course of criminal prosecutions, whether by Indictment or Information: with a copious Collection of Precedents of indictments, informations, presentments, and every description of practical forms, with comprehensive notes as to each particular offence, the process, indictment, plea, defence, evidence, trial, verdict, judgment, and punishment , 2 nd ed (London: AJ Valpy, 1816) at 175. 143 See for instance Ex parte Huguet (1873), [1861-73] All ER Rep 770 at 771; Scrimshire (otherwise Jones) v Scrimshire (1752), 2 Hag Con 395; Re Coppin (1866), LR 2 Ch App 47; Everth v Tunno (1816), 1 Stark 508.
31 E) No Rule Governs the Language of Documentary Evidence
96. Rule 22-3 of the Supreme Court Civil Rules provides (emphasis added):
(1) The forms in Appendix A must be used if applicable, with variations as the circumstances of the proceeding require, and each of those forms must be completed by including the information require by that form in accordance with any instructions included on the form. (2) Unless the nature of the document renders it impracticable, every document prepared for use in the court must be in the English language, legibly printed, typewritten or produced on 8 1/2 x 11 inch durable white paper or durable off-white recycled paper. 97. Rule 22-3 specifies two categories of material which must be in English: the forms mentioned in Rule 22-3(1), and the documents “prepared for use in court,” mentioned in Rule 22-3(2). The Appellants acknowledge that the ordinary meaning of “documents prepared for use in court” includes affidavits, which do not exist prior to their creation for use in court. Indeed, there is a form for affidavits in Appendix A. 144 However, documents that existed prior to the litigation and documents that were not prepared for the purposes of litigation are not covered by Rule 22-3(2), which speaks only to documents that are specifically “prepared for use in court.” Exhibits attached to affidavits exist prior to being appended to an affidavit and are distinct from “document[s] prepared for use in the court.”
98. The definition of “exhibit” offered by Black’s Law Dictionary clearly affirms that exhibits are evidence (emphasis added):
Exhibit: A document, record or other tangible object formally introduced as evidence in court. A document attached to and made part of a pleading, motion, contract, or other instrument. 145 99. In this case, the exhibits at issue were created prior to the government’s application challenging the Conseil’s and the Fédération’s standing. These documents are internal documents created in the ordinary course of the activities of the Conseil and the Fédération. They therefore do not fall within the scope of Rule 22-3(2).
100. Appendix A to the Supreme Court Civil Rules , referred to in Rule 22-3(1), contains a list 146 of initiating documents that are the modern-day equivalents to the list of documents in the text of the 1731 Act . Thus, the 1731 Act does not address any issue not already addressed by the Rules.
101. The Appellants’ interpretation of Rule 22-3(2) is supported by the fact that Rule 22-3(1) deals with the forms listed in Appendix A to the Supreme Court Civil Rules . Applying the maxim of interpretation expressio unius est exclusio alterius (i.e., to express one thing is to exclude another),
144 Supreme Court Civil Rules , supra note 126, Apendix A. 145 Black’s Law Dictionary, sub verbo “exhibit.” See also R v Lantos, [1963] BCJ No 104 at para 3 (CA); R v Cherpak , [1978] AJ No 9720 at para 9 (CA). 146 See the complete list of forms included at Appendix A to the Supreme Court Civil Rules , supra note 126.
32 leads to the conclusion that the absence of certain items indicates that they were deliberately excluded. 147 Otherwise, terms broad enough to encompass all related concepts would have been used in the rules.
102. Therefore, it is significant that the drafters of the Supreme Court Civil Rules chose to address the issue of the language of documents in the same rule as they did forms. The forms provided for in Appendix A are in the nature of initiating documents or other documents that engage, in one way or another, the court’s authority to grant relief. These include documents such as affidavits, notice and response to civil claims, subpoenas, writs, etc.148 They, like the documents contemplated by Rule 22- 3(2), do not exist prior to their creation for service and filing with the court, as a procedural step in a particular civil litigation matter. Given that the forms referred to in Rule 22-3(1) represent specific types of initiating documents before the Court, it is logical to conclude that the reference to “every document prepared for use in the court” in Rule 22-3(2) necessarily refers to court documents that are not provided for by way of form. It is, in effect, a residual category. This conclusion is reinforced by the further requirements of Rule 22-3(2) that the documents be “legibly printed, typewritten or produced on 8 1/2 x 11 inch durable white paper.” These are reasonable requirements for documents specifically prepared for use in court, but are not reasonable for existing documents tendered in evidence, which will often not satisfy these requirements. 149
103. The only other rule that addresses the language of documents is Rule 22-2(7):
(7) If it appears to the person before whom an affidavit is to be sworn or affirmed that the person swearing or affirming the affidavit does not understand the English language, the affidavit must reinterpreted to the person swearing or affirming the affidavit by a competent interpreter who must certify on the affidavit, by endorsement in Form 109, that he or she has interpreted the affidavit to the person swearing or affirming the affidavit. 150 104. Because affidavits already fall within the scope of Rule 22-3, there is no inconsistency between Rules 22-3 and 22-2(7). On a plain reading of Rule 22-3, particularly in light of Rule 22-3(1), it does not extend to exhibits attached to affidavits, which are not documents “prepared for use in the court”.
105. No other rule deals with the language of documents or exhibits to an affidavit. Paragraph 1(2)(b) of the Court Rules Act permits the Lieutenant Governor in Council, after consultation with the Chief Justice of the Supreme Court, to make rules regarding the means of proving and giving evidence. This is the purpose of Rule 12-5, entitled “Evidence and Procedure at Trial.” However, Rule 12-5 does
147 P-A Côté, supra note 56 at para 1249; Sullivan, supra note 56 at 244. 148 Supreme Court Civil Rules , supra note 126, Appendix A. 149 Han v Cho , 2008 BCSC 1208 at para 9 [Han ]. 150 Supreme Court Civil Rules , supra note 126, Rule 22-2(7). Rules 19-2(2) and 19-3(3) deal with the translation of foreign or other Canadian judgments sought to be enforced in British Columbia.
33 not address the language of documentary evidence.151 In sum, the Supreme Court Civil Rules are silent on the language of exhibits attached to affidavits and on the language of transcripts filed as evidence. 152 The Evidence Act is also silent on these questions.
106. Because the express rules are silent on the language of exhibits attached to affidavits, the matter falls to the inherent jurisdiction of the superior courts to manage their own processes. This raises no particular difficulty. Indeed, the British Columbia Supreme Court has had no trouble addressing a similar silence in the express rules about the language of documents produced on discovery. The Court has in fact held that such documents do not fall within the scope of Rule 22-3(2) and no translation of documents in a language other than English is required.
107. In Han v Cho ,153 the defendant applied for an order requiring the plaintiffs to produce a certified translation of supplementary documents in Korean, which had been requested on discovery. The court rejected the defendant’s argument that the documents were governed by Rule 4(2), which has since been replaced by the identical current Rule 22-3(2) (emphasis added):
In my view, Rule 4(2) is meant to apply to submissions and documents, which are court forms or filed in court. In my view, it would be a mistake to extend the meaning of Rule 4(2) to cover the form of documents produced under Rule 26. If that was the meaning imposed on Rule 4(2), it would, for example, require a party to type out handwritten notes and produce the typewritten version in response to a Rule 26 demand for discovery of documents, instead of producing the handwritten note in its original form. While in many cases it would seem practical and helpful for an opposite party to type out handwritten notes, or translate documents in a foreign language to assist the other party, I conclude that Rule 4(2) does not require a party to do so when responding to a Rule 26 demand for production of documents. 154 108. Justice Griffin rendered a similar decision in Bilfinger Berger (Canada) v Greater Vancouver Water District .155 The plaintiffs produced documents written in German, and the defendants sought an order that the plaintiffs provide translations for these documents. Again, Justice Griffin refused to make the order.
109. The Appellants submit that Justice Willcock’s decision that exhibits attached to affidavits fall within the scope of Rule 22-3(2) is squarely at odds with Han and Bilfinger Berger. The Appellants note that the Court of Appeal did not adopt Justice Willcock’s excessively broad interpretation, which is inconsistent with a plain and ordinary reading of the text of the rule.156 Such an interpretation will impede access to justice in the British Columbia and offend the principle of proportionality, codified
151 See in particular Supreme Court Civil Rules , supra note 126, Rules 12-5(8) to 12-5(18). 152 Ibid , Rules 12-5(40), 12-5(42) and 12-5(51), where the only requirement is that the transcripts be “certified.” 153 Han , supra note 149. 154 Ibid at para 9. 155 2010 BCSC 1104 [ Bilfinger ]. 156 Conseil scolaire francophone de la Colombie-Britannique v British Columbia , supra note 15.
34 by Rule 1-3, the aim of which is “to secure the just, speedy and inexpensive determination of every proceeding on its merits”. 157
F) The Inherent Jurisdiction of the Court Permits the Tendering of Untranslated Documentary Evidence 110. As there is no rule of the Supreme Court Civil Rules governing the language of exhibits attached to affidavits, the Evidence Act is silent on this issue, and the 1731 Act is either not in force, or does not apply to documents tendered in evidence, the question falls to the inherent jurisdiction of the superior courts to manage their own processes. The Appellants submit that Justice Willcock therefore has a discretion to admit the untranslated documents as evidence, and that he erred in not exercising that discretion in favour of the Appellants.
111. The inherent jurisdiction of a superior court has always been exercisable as a part of the administration of justice: “it is part of procedural law, both civil and criminal, and not of substantive law; it is invoked in relation to the process of litigation”. 158
112. According to I.H. Jacob, “from the inherent jurisdiction of the court to regulate its proceedings, there has been created and developed the powerful and remarkable rule-making authority.” 159 A superior court’s inherent jurisdiction is the ultimate source of the rules of court. The rules of civil procedure “[have] not destroyed or exhausted, but only to a certain extent regulated, the inherent jurisdiction of the court to regulate its proceedings”. 160 While legislatures have encroached somewhat on this inherent jurisdiction, they have “not attempted to define its nature or its limits”. 161
113. This inherent and independent jurisdiction is available to address matters not expressly regulated by the rules of court. It involves the exercise of discretion, whenever it is just and equitable to do so, and in particular to ensure a fair process.162 The inherent jurisdiction of the superior court has been preserved as an aspect of procedural law in British Columbia. 163
157 Supreme Court Civil Rules , supra note 126, Rule 1-3. See also Conseil , 2012 BCSC 582, supra note 5 at paras 4-5. 158 IH Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Curr Legal Probs 23 at 23-24 [Jacob ]. See R v Caron , [2011] 1 SCR 78 at paras 24-26; Buchan v Moss Management Inc , 2010 BCCA 393 [Buchan ]. 159 Jacob, supra note 158 at 34. See also K. Mason, “The Inherent Jurisdiction of the Court” (1983) 57 Austl LJ 449 at 455 [Mason ]. 160 Jacob, supra note 158 at 34. See, for example, Buchan , supra note 158 at paras 6-7, where the court rejected the proposition that a superior court could not rely on its inherent jurisdiction to fix costs in a manner not provided for in the rules of court. 161 Jacob, supra note 158 at 51. 162 IH Jacob demonstrates that a court may admit evidence even where not specifically provided for by the rules of court, giving the admitting of evidence by affidavit as a specific example ( ibid at 51). 163 Buchan, supra note 158 at para 12, holding that s. 3 and s. 9(1) of the Supreme Court Act preserve the superior court’s inherent jurisdiction. Section 3 of the Supreme Court Act provides that Supreme Court judges “have all the powers, rights,
35 114. There being no rule of the Supreme Court Civil Rules requiring the Appellants to translate exhibits to affidavits into English, and given that on this issue “no procedural machinery has been provided, it is for the Court to provide such machinery as best it can”. 164 Such an exercise by a court of its inherent jurisdiction to manage its own processes is commonplace and does not, in any sense, entail that there exists an unworkable void in the law.
115. The courts below erred in failing to recognize that Justice Willcock has the discretion to admit the untranslated documents, were he of the view that it was in the interests of justice to do so. These decisions imply that there is no residual discretion to accomplish the basic goal of proportionality in civil procedure. Such an approach is also directly contrary to that taken by English courts when the 1731 Act , as amended in 1733, was in force in England.
116. The documents at issue in this appeal are not precluded by the Supreme Court Civil Rules and are the best evidence available. The best evidence rule, perhaps better referred to in its modern form as the “original documents” rule, 165 requires that an original document be tendered into evidence whenever a party seeks to prove the contents of that document. The rationale behind the rule is clear: “the wording of a document provides its meaning, and if that wording is changed, either through accident or design, the meaning of the document may also be fundamentally altered.” 166
117. In R v Ho , 167 the Ontario Court of Justice, addressed whether an English translation of a conversation held in Cantonese was admissible as a “transcript” under s. 189(5) of the Criminal Code . Relying primarily on the best evidence rule, the Court concluded that the translation was inadmissible, observing that “there can be no doubt that in translating from one language to another, something is often lost or the true meaning is not conveyed” 168 and that something had been “lost in the translation.” 169 In several contexts, Canadian courts have either refused to admit evidence or ordered new hearings on the basis that the translation was inadequate. 170
incidents, privileges and immunities of a judge of a superior court of record, and all other powers, rights, incidents, privileges and immunities that on March 29, 1870, were vested in the Chief Justice and the other justices of the court.” Subsection 9(1) of the Supreme Court Act provides that the Supreme Court “continues to be a court of original jurisdiction and has jurisdiction in all cases, civil and criminal, arising in British Columbia.” 164 Mason, supra note 159 at 449. 165 Paciocco and Steusser, supra note 140 at 466. See also Sopinka, supra note 140 at 1013. 166 Paciocco and Steusser, supra note 140 at 466. 167 R v Ho , [1998] OH No 5248 (CJ PD) [ Ho ]. 168 Ibid at para 21 169 Ibid at para 23. 170 See also R v Ouellette and Rioux , [1976] BCJ No 1303 (Prov Ct); Shaghagi v Mozaffarian , 2002 BCCA 531; R v Shayesteh, [1996] OJ No 3934 (CA); R v Beaulieu , [1981] NBJ No 24 (QB TD); Iantbelidze v Canada (Minister of
36 118. Here, the Chief Justice of the Supreme Court, Justice Robert J. Bauman, has assigned a bilingual judge to this action and its case management, notably because of the volume of French documents. 171 Since Justice Willcock is able to understand the evidence provided in French, he ought to be able to exercise his discretion to admit the evidence. 172 The Respondents are institutionally capable of dealing with French documents 173 and the Appellants do not object to counsel for the Respondents obtaining and tendering translations. The Respondents may attempt to raise the spectre of unfairness in judicial proceedings if parties are permitted to tender untranslated documents into evidence. Such an in terrorem argument should not be taken seriously. The answer is simply that the question is always subject to the inherent jurisdiction of the court.
119. In most cases, judicial efficacy and procedural fairness will require proceedings to take place in English in British Columbia. The judge must be able to understand the record before the court and the other side has a right to understand the case to be met. In the ordinary case, these considerations will militate in favour of the burden of translation falling upon the person seeking to adduce the evidence. However, this conclusion will not follow when the judge understands the documents and the other side is capable (or institutionally capable) of understanding them. In such circumstances, to impose unnecessary translation costs on the party seeking to adduce the evidence is frivolous and abusive, and interferes with access to justice. A superior court judge must have the inherent jurisdiction to prevent such an injustice.
120. These considerations have amplified force when a party is seeking to assert its official language rights against the government. The exercise of a superior court’s inherent discretion to control its own processes must take into account s. 16(3) of the Charter and the principle of the protection of minorities. In the very particular circumstances of this case, Justice Willcock should have exercised his discretion to allow the Appellants to introduce their untranslated documents into evidence.
PART IV - SUBMISSIONS AS TO COSTS
121. The Conseil and the Fédération are not-for-profit institutions seeking to have their Charter rights respected. The co-plaintiff parents are individuals who do not have substantial financial
Citizenship and Immigration) , 2002 FCT 932; Umubyeyi v Canada (Minister of Citizenship and Immigration) , 2011 FC 69; R v Shergill , [1996] OJ No 4524 (CJ GD). 171 November 2 2010 Case Planning Conference Transcript, supra note 6. 172 Ibid at 2. 173 See the Affidavit of Dany Gabay, supra note 7.
37 resources. The issues in the present appeal are novel and their resolution is a matter of general public interest. The Appellants accordingly seek costs on a solicitor-client basis before all courts, in any event of the cause.
PART V - ORDER SOUGHT
122. The Appellants request that this Court allow the appeal, with costs throughout.
123. Additionally, the Appellants specifically request that the Court consider giving judgment from the bench 174 or shortly after the hearing, 175 with reasons to follow. In the alternative, the Appellants request the judgment of this Court be issued well in advance of October 7, 2013. Given that the trial of the action is scheduled for October 7, 2013,176 this Court’s decision (if in the Appellants’ favour) will be of no practical benefit to the Appellants if it is rendered after they have undertaken the colossal task of translating the documentary evidence from French to English, in preparation for the trial.
Dated this 8th day of January 2013 in Ottawa.
(ORIGINAL SIGNED BY JENNIFER KLINCK)
HEENAN BLAIKIE LLP Lawyers 55 Metcalfe Street Suite 300 Ottawa, Ontario K1P 6L5
Robert W. Grant, Q.C. Mark C. Power Jennifer Klinck
174 As was done, for example, in: Rothmans, Benson & Hedges Inc v Saskatchewan , [2005] 1 SCR 188; Bank of Montreal v Dynex Petroleum Ltd. , [2002] 1 SCR 146; Miller v Monit International Inc , [2001] 1 SCR 432; Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch) , [2001] 2 SCR 781; R v C (TL), [1994] 2 SCR 1012. 175 See BCE Inc v 1976 Debentureholders , [2008] 3 SCR 560; Pinet v St Thomas Psychiatric Hospital , [2004] 1 SCR 528; Penetanguishene Mental Health Centre v Ontario (Attorney General) , [2004] 1 SCR 498; Save Richmond Farmland Society v Richmond (Township) , [1990] 3 SCR 1213. 176 Certificate of trial readiness, supra note 4; August 10 Oral Reasons, supra note 4 at para 34.
38 PARTIE VI – TABLE OF AUTHORITIES
Tab Caselaw Para cited. 1. Bank of Montreal v Dynex Petroleum Ltd. , [2002] 1 SCR 146. 123 2. National Bank of Greece (Canada) v Katsikonouris , [1990] 2 SCR 1029. 88 3. BCE Inc v 1976 Debentureholders , [2008] 3 SCR 560. 123 4. Bilfinger Berger (Canada) v Greater Vancouver Water District . 2010 BCSC 108, 1104. 109 5. Boleak v Boleak , 1999 BCCA 776. 83 6. Buchan v Moss Management Inc , 2010 BCCA 393. 111, 112, 113 7. Callender v Callender Estate , [1999] BCJ No 1833 (SC). 83 8. Penetanguishene Mental Health Centre v Ontario (Attorney General) , [2004] 1 123 SCR 498. 9. Conseil scolaire francophone de la Colombie-Britannique v British Columbia 11, (Education) , 2012 BCSC 582. 13, 109, 123 10. Conseil scolaire francophone de la Colombie-Britannique v British Columbia 11, (Education) (August 10, 2012) Vancouver S103975 (BCSC). 123 11. Dagenais v Canadian Broadcasting Corp , [1994] 3 SCR 835. 18 12. Ellen Street Estates , [1934] 1 KB 590 (UKCA). 70 13. Everth v Tunno (1816), 1 Stark 508. 94 14. Ex parte Huguet (1873), [1861-73] All ER Rep 770. 94 15. Han v Cho , 2008 BCSC 1208. 102, 107, 109 16. Iantbelidze v Canada (Minister of Citizenship and Immigration) , 2002 FCT 932. 117 17. The India (1864), 167 ER 345 (HC Adm R-U). 70 18. Laird v Cypress Anvil Mining Corp , [1984] BCJ No 2721 (SC). 83 19. Lalonde v Ontario (Commission de restructuration des services de santé) , [2001] 18, OJ No 4767 (CA). 19, 78 20. Lavaris v Macmillan Bloedel Ltd (1977), 81 DLR (3d) 197 (BCSC). 82,
39
21. Leith v Willis , [1836] OJ No 53 (QB). 53, 74, 81 22. Lévis (City) v Fraternité des policiers de Lévis Inc , [2007] 1 SCR 591. 36 23. Mahe v Alberta , [1990] 1 SCR 342. 13 24. McDonnell v Fédération des franco-colombiens , [1985] BCJ No 2740. 87
25. Miller v Monit International Inc , [2001] 1 SCR 432. 123 26. Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and 123 Licensing Branch) , [2001] 2 SCR 781. 27. Pecore v Pecore , 2007 SCC 17. 60 28. Pinet v St Thomas Psychiatric Hospital , [2004] 1 SCR 528. 123 29. R. v Beaulac , [1999] 1 SCR 768. 11, 87 30. R v Beaulieu , [1981] NBJ No 24 (QB TD). 117 31. R v C (TL) , [1994] 2 SCR 1012. 123 32. R v Caron , [2011] 1 SCR 78. 111 33. R v Cherpak , [1978] AJ No 9720 (CA). 98 34. R v Ho , [1998] OH No 5248 (CJ PD). 117 35. R v Jebbett , 2003 BCCA 69. 66, 85 36. R v Lajoie , BCJ No 494 (BCSC). 87, 88 37. R v Lantos, [1963] BCJ No 104 (CA). 98 38. R v Lefebvre , [1982] AJ No 1009 (QB). 89 39. R. v Lindsay , 2008 BCCA 30. 66 40. R v Mercure , [1988] 1 SCR 234. 16, 72 41. R v Ouellette and Rioux , [1976] BCJ No 1303 (Prov Ct). 117 42. R v Pelletier, 2002 BCSC 561. 87, 88 43. R v Shayesteh, [1996] OJ No 3934 (CA). 117 44. R v Shergill , [1996] OJ No 4524 (CJ GD). 117 45. R v Vaughan, [2000] FCJ No 311 (TD). 89 46. R. v Van der Peet , [1996] 2 SCR 507. 56 47. R v Walker, (1988), 2 Qd R 79. 70
40
48. R v Williams , [1998] 1 SCR 1128. 18 49. R v Zundel , [1992] 2 SCR 731. 18 50. Raisbeck v Desabrais , [1970] AJ No 166 (SCAD). 69, 85 51. Re Coppin (1866), LR 2 Ch App 47. 94 52. Re Manitoba Language Rights , [1985] 1 SCR 721. 71 53. Re Poulin, [1968] BCJ No 92 (CS) conf [1968] BCJ No 95 (CA). 87, 88 54. Reference re Public Schools Act (Man.) , s 79(3), (4) and (7), [1993] 1 SCR 839. 13 55. Reference re Secession of Quebec , [1998] 2 SCR 217. 19, 34, 78 56. Ref re Remuneration of Judges of the Prov Court of PEI; Ref re Independence 19, and Impartiality of Judges of the Prov Court of PEI, [1997] 3 SCR 3. 78 57. Renvoi relatif au Régime d’assistance publique du Canada (C-B) , [1991] 2 RCS 37 525. 58. Robitaille v Vancouver Hockey Club Limited , [1981] BCJ No 555 (CA). 83 59. Rothmans, Benson & Hedges Inc v Saskatchewan , [2005] 1 SCR 188. 123 60. Royal Bank v Pischke et al, [1933] 1WWR 145 (Ct Dist Sask). 67, 85 61. Save Richmond Farmland Society v Richmond (Township) , [1990] 3 SCR 1213. 123 62. Scott v Scott (1970), 2 NBR (2d) 849 (NBCA). 24 63. Scrimshire (otherwise Jones) v Scrimshire (1752), 161 ER 782. 94 64. Shaghagi v Mozaffarian , 2002 BCCA 531. 117 65. Thoburn v Sunderland City Council , [2002] EWHC 195. 70 66. Umubyeyi v Canada (Ministre de la citoyenneté et de l’immigration) , 2011 FC 117 69. 67. Uniacke c Dickson, (1848), 2 NSR 287 (Ch). 50, 51, 59, 65 68. Wawanesa Mutual Insurance Co v Co-operative Fire and Casualty Co , 1980 SJ 68, No 614. 85 69. Whicker v Hume (1858), 7 HLC 124. 21 70. Conseil scolaire francophone de la Colombie-Britannique v British Columbia 15, (Education) , 2011 BCSC 1219. 20
41
71. Doe d Anderson v Todd (1846) 2 UCQB 82. 47, 49 72. Fédération des parents francophones de Columbie- Britannique v British 20 Columbia (Attorney General) , 2012 BCCA 422. 73. Hixon v Reavely (1904), 9 OLR 6 (HCJ). 47, 49 74. Mercer v Hewston (1859) 9 UCCP 349. 47, 49
42 PARTIE VII – LAWS AND STATUTES
See book of authorities of the appellants.