Court File No. CP-634/98

B E T W E E N:	)
	)
Fred Geisweiller / Locomotive Investments Inc. C.O.B. Le Select	) )	Will McDowell, for the Applicant
Applicant	)
	)
- and -	)
	)
Uriel Wittenberg	)	Geoffrey K. Ketcheson,
Respondent	)	for the Respondent
	)
	)	Heard: June 21, 1999
	)

Rivard J.

[1]   The defendant appeals from a judgment obtained in the Small Claims Court. In his defence, the defendant had requested to “have the case heard in French.” The first trial date provided for the case to be tried by a judge who spoke both French and English. The trial was postponed at the request of the defendant. The judge who presided at the second trial date was not a bilingual judge.

[2]   At the trial, the defendant asked the presiding judge if his arguments could be heard in French. The judge responded to the effect that he was not bilingual and that a formal motion should have been made to have the trial conducted in French. The judge suggested that if argument was to be in the French language, it would have to be presented in writing. The judge then asked the defendant if he felt “hampered” by proceeding in English. The defendant responded that he did and gave his reasons for feeling this way. The trial judge then proposed that the trial proceed and suggested that if the defendant encountered some difficulty, the court would try to address those difficulties as they arose. The trial then proceeded entirely in the English language.

[3]   Section 126(1) of the Courts of Justice Act reads as follows:

“A party to a proceeding who speaks French has the right to require that it be conducted as a bilingual proceeding.”

[5]   The defendant clearly was entitled to require that the trial be conducted as a bilingual proceeding. Although his request was for “the case to be heard in French,” I am satisfied that this constituted a valid request for a bilingual proceeding.

[6]   In failing to offer the defendant the bilingual proceeding he had requested, the trial judge erred. He should have adjourned the trial to an officer who spoke both French and English, thereby affording to the defendant his right to a bilingual proceeding.

[7]   I do not accept that the approach taken by the trial judge to the defendant’s request to be heard in the French language was consistent with his obligation under section 25 of the Courts of Justice Act to proceed in a summary way and ought not constitute a valid ground for appeal.

[8]   The right conferred by section 25 is an important linguistic right intended to afford Francophones the opportunity to present their cases in their language. Section 25 gives direction to Small Claims Court judges to hear cases in a manner which will keep costs low and procedure simple. I do not believe, however, that section 25 is to be applied at the expense of the linguistic rights found in section 126. There are important historical, political and social reasons for legislation which protects linguistic rights of the Francophone population in Ontario. Section 126 is one example of such legislation and it should be given a broad interpretation. Section 126 should not be disregarded because of the procedural powers granted by section 25 of the Courts of Justice Act.

[9]   The appellant requests a new trial as a result of the trial judge’s failure or inability to grant to him a bilingual proceeding. The respondent submits that under section 134(6) of the Courts of Justice Act, I ought not direct a new trial because no “substantial wrong or miscarriage of justice has occurred.”

[10]   To deny a party the right to a bilingual proceeding under section 126 of the Courts of Justice Act is a substantial wrong which requires that a new trial take place. In my view, the failure of the trial judge to afford the defendant that right, when the defendant requested it, should in itself be sufficient to warrant that a new trial be ordered. In this case, the evidence is not only that the right of the defendant to a bilingual proceeding was not respected; the evidence indicates that the defendant did inform the court he felt hampered by his inability to present his argument in the French language. In those circumstances, the trial ought to have been adjourned to a judge who could provide a bilingual proceeding.

[11]   I do not accept that the defendant waived his right to a bilingual proceeding under section 126. The waiver of such a right must be clear and informed. A reading of the transcript does not satisfy me it was clear or informed. In fact, the defendant appears to have continued with the trial as a result of the trial judge’s insistence that he do so and not following a waiver of his right to a bilingual proceeding.

[12]   The appeal will therefore be allowed and a new trial will be ordered. The new trial is to be a bilingual proceeding as provided under section 126 of the Courts of justice Act.

[13]   No costs.

[signed]
Rivard J.