Belende v. Patel et al. *
[Indexed as: Belende v. Patel]
89 O.R. (3d) 494
Court of Appeal for Ontario,
Weiler, Blair and Rouleau JJ.A.
February 29, 2008
* Vous trouverez la version franais de la dcision ci-dessus la p.501, post.
Civil procedure — Language — Plaintiff requiring that his action be conducted as bilingual proceeding pursuant to s. 126 of Courts of Justice Act — No bilingual judge available to hear defendants’ motion for summary judgment dismissing action
— Non-bilingual motion judge denying plaintiff’s request for adjournment on basis that plaintiff was using language rights to delay proceedings — Motion judge proceeding to hear and grant defendants’ motion — Plaintiff’s appeal allowed
— Motion judge’s failure to adjourn proceedings and refer matter to bilingual judge violating plaintiff’s right to bilingual proceeding under s. 126 of Act — Courts of Justice Act, R.S.O. 1990, c. C.43, s. 126. [page495]
The plaintiff brought an action for an order rescinding the sale of his property and awarding him general damages. Under s. 126 of the Courts of Justice Act, he required that the action be conducted as a bilingual proceeding. On the date set for the hearing of a motion by the defendants for summary judgment dismissing the action as against them, no bilingual judge was available, and the plaintiff’s agent sought an adjournment. The motion judge, who was not bilingual, dismissed that motion, holding that in his opinion the plaintiff was attempting to manipulate the bilingual obligation of provincial laws to his own purpose in order to delay the proceedings. He heard and granted the defendants’ motion. The plaintiff appealed.
Held, the appeal should be allowed.
The motion judge’s failure to adjourn the proceeding and refer the matter to a bilingual judge violated the plaintiff’s rights under s. 126 of the Act. The right granted by s. 126 is not qualified by any grant of judicial discretion. Although the court has the inherent jurisdiction to control the conduct of proceedings before it, that jurisdiction cannot be exercised in a manner that would conflict with the express provisions of a statute. It would not be appropriate for the Court of Appeal to dismiss the appeal on the basis that it was clear that the underlying claim was without merit. Language rights under s. 126 of the Act are quasi-constitutional in nature, and violation of those rights constitutes material prejudice to the linguistic minority. An appellate court would be undermining the importance of those rights if, in circumstances where the decision rendered on the merits was correct, the breach of the right to a bilingual proceeding was tolerated and the breach was not remedied.
Cases referred to
Ndem v. Greenspoon,  O.J. No. 3269, 189 O.A.C. 140, 132 A.C.W.S. (3d) 998 (C.A.); R. v. Beaulac,  1 S.C.R. 768,  S.C.J. No. 25, 173 D.L.R. (4th) 193, 238 N.R. 131, J.E. 99-1082, 121 B.C.A.C. 227, 134 C.C.C. (3d) 481, 62 C.R.R. (2d) 133, 42 W.C.B. (2d) 217; R. v. Palmer,  1 S.C.R. 759,  S.C.J. No. 126, 106 D.L.R. (3d) 212, 30 N.R. 181, 50 C.C.C. (2d) 193, 14 C.R. (3d) 22, 17 C.R. (3d) 34
Statuets referred to
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 126 Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rules 20, 21 Authorites referred to
Osborne, Coulter A., Civil Justice Reform Project (Toronto:
Ministry of the Attorney General, November 2007), <<.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjrp/>>
APPEAL from the judgment of Campbell J. of the Superior Court of Justice, dated March 22, 2007, dismissing an action.
Ndem Belende, self-represented.
R. Lee Akazaki, for Farzana Nabizada and Seena Nasrati.
Matthew Horner, for intervenor Attorney General of Ontario. [page496]
The judgment of the court was delivered by
 ROULEAU J.A.: — The appellant appeals an order dated March 22, 2007, granting summary judgment to the respondents, Farzana Nabizada and Seena Nasrati, and dismissing the appellant’s action. Since the defendants Babubhai Patel and CDN Business Investor Corp. did not participate in the motion, the action against them continues. In his grounds of appeal, the appellant asks not only that the decision of the motion judge be set aside, but also that judgment on the merits be granted in his favour.
The Instant Proceedings
 In these proceedings the appellant sought an order rescinding the sale of his property and awarding him general damages of $1,500,000. In 2006, Babubhai Patel, a mortgage creditor, sold the property to the respondents through a power of sale.
 These were bilingual proceedings conducted under s. 126 of the Courts of Justice Act, R.S.O. 1990, c. C.43. Three motions were scheduled for January 11, 2007, two in this case and one in another file involving the appellant. Before the hearing, the appellant was notified that a bilingual judge would not be available to hear the motions. On the hearing date, the appellant’s agent appeared and requested that the hearing of the motions be adjourned to a later date when a bilingual judge would be available.
The Decision Below
 The motion judge, who was not bilingual, denied the appellant’s motion for an adjournment and proceeded to hear the three scheduled motions including the motion now under appeal. In that motion, the respondents sought the dismissal of the claim pursuant to Rules 20 and 21 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194].
 The motion judge explained that a bilingual judge was not available and that in his opinion, the appellant was “attempting to manipulate the bilingual obligation of provincial laws to his own purpose” in order to delay the proceedings. The motion judge stated as follows [at paras. 2-4]:
The motions in this and a related matter were returnable on a day on which a French-speaking judge was unavailable. The actions of Mr. Ndem were responsible for that unavailability. In various proceedings in this Court, including this action, Mr. Ndem has objected to the presence of more than 16 individual judges as not being qualified to preside due to inadequacy in the French language. [page497] On at least three occasions, bilingual judges from outside Toronto have made special arrangements to preside, only to meet with complaint about their French speaking ability, or on occasion when Mr. Ndem did not appear, later providing a less than adequate excuse. Prior to the return of this motion, I was advised by the only bilingual judges available that due to Mr. Ndem’s previous complaint, they did not wish to preside.
 The motion judge stated that in order to understand the appellant’s position, he had obtained assistance from the respondents’ counsel and also, “to the extent required”, had had the appellant’s written submissions translated into English. The motion judge also noted that to the best of his knowledge, the appellant was bilingual and that, moreover, an interpreter was available in the courtroom.
 Therefore, although it was a bilingual proceeding and the statement of claim and several documents in the file were written only in French, the motions were heard by a unilingual judge. In the result, the respondents’ motion was granted and the appellant’s action against them was dismissed. Although the appellant had filed a cross-motion, it appears that the cross- motion was not heard.
 The appellant appeals (in part) on the basis that the motion judge’s failure to adjourn the proceedings and to refer the matter to a bilingual judge violated the appellant’s right to a bilingual proceeding under s. 126 of the Courts of Justice Act. He argues that since this is a fundamental right, the appeal should be allowed without proof that he suffered prejudice. For the reasons that follow, I agree with the appellant and would therefore allow the appeal.
(1) Motions before the Court of Appeal
 Two other motions were heard at the same time as this appeal. The first was a motion brought by the respondents to admit fresh evidence, specifically, two letters the appellant wrote after release of the decision under appeal. In my opinion, this evidence should not be admitted since it would not have had any effect on the outcome of the case: see R. v. Palmer,  1 S.C.R. 759,  S.C.J. No. 126, at p. 775 S.C.R.
 The second was a cross-motion brought by the appellant. In his written submissions in support of the cross-motion, the appellant not only asks the court to dismiss the motion for fresh evidence, but also to act as a court of first instance and to render a just decision on the merits. The [page498] appellant does not, however, state the decision on the merits he is seeking nor does he explain how this relief is available on a motion to this court.
 In my view, the appellant’s cross-motion is misconceived. Because I have already dismissed the respondents’ fresh evidence motion and because there is no basis upon which this court can grant the balance of the relief sought in the appellant’s cross-motion, I would dismiss the cross-motion.
(2) The appeal
 The respondents submit that the appeal should be dismissed for the following reasons:
(a) the motion judge correctly concluded that an adjournment should not be granted because the appellant had abused the process and because this abuse:
(i) had the effect of preventing any bilingual judge from hearing the motions; and
(ii) warranted the sanction of a denial of his right to be heard by a bilingual judge;
(b) in the alternative, even if the motion judge had erred, the appeal should nevertheless be dismissed because the appellant did not suffer any prejudice.
I will consider both arguments below.
(a) Refusal to grant the adjournment
(i) Appellant’s complaints
 In his reasons, the motion judge referred to the difficulties many judges encountered in cases involving the appellant and the fact that the appellant had complained about their French language skills. Although the motion judge made these comments, there is nothing in the record that would allow us to assess these assertions. Specifically, there is nothing in the record to indicate what happened before the motion judge or to verify the complaints that the appellant has apparently filed.
 In my view, the fact that the appellant has complained about the French language skills of several Toronto judges does not necessarily lead to a conclusion that all the bilingual judges in the region are precluded from hearing cases involving him. In fact, the appellant even criticized the motion judge who nevertheless [page499] proceeded to hear the motions. What’s more, the appellant has criticized judges of this court and still these judges continue to hear his appeals.
 The motion judge’s comments might be read as suggesting that the appellant’s criticisms amounted to an allegation of bias. However, criticism of a judge or an allegation of bias should not necessarily lead to the conclusion that a judge cannot preside, especially when this would lead to the loss of the right to a bilingual proceeding. Instead, a judge faced with such an allegation should receive supporting evidence and then decide, on a case by case basis, whether to recuse himself or herself.
(ii) Did the judge have the jurisdiction to deny the right to a bilingual proceeding?
 The right to a bilingual proceeding is conferred by s. 126 of the Courts of Justice Act which reads, in part, as follows:
126(1) A party to a proceeding who speaks French has the right to require that it be conducted as a bilingual proceeding.
(2) The following rules apply to a proceeding that is conducted as a bilingual proceeding:
1. The hearings that the party specifies shall be presided over by a judge or officer who speaks English and French.
 Despite this provision, the respondents maintain that no right is absolute and that where there has been an abuse of process, the court may deny the right to bilingual proceedings.
 However, the right in s. 126 is not qualified by any grant of judicial discretion. Although it is true that the court has the inherent jurisdiction to control the conduct of the proceedings, it is also clear that the court’s jurisdiction cannot be exercised in a manner that would conflict with the express provisions of a statute.
 What’s more, a court has other means at its disposal to address a litigant’s abuse of process. For example, the court may deny the litigant’s application for an adjournment, stay the proceedings, or find the abuse to constitute a contempt of court. Moreover, the court may also prohibit a vexatious litigant from continuing the proceedings or initiating others. These provisions (and others) enable the court to control its process and to prevent abuse without violating the litigant’s statutory right to a bilingual proceeding.
 In light of the foregoing, in my view, the motion judge should have adjourned the motions to a date when a bilingual judge was available. [page500] (b) If an error was made, should the Court of Appeal make the decision that the motion judge should have made?
 The respondents submit that even if the appellant’s right to a bilingual hearing was violated, this court should nevertheless dismiss the appeal since it is clear that the underlying claim is without merit. I disagree and would not consider the merits of the underlying claim.
 The right to a bilingual hearing is a particular kind of right. It is not a procedural right put into place to ensure respect for the principles of fundamental justice or the right to a fair trial. As indicated by the Supreme Court of Canada in R. v. Beaulac,  1 S.C.R. 768,  S.C.J. No. 25, at para. 41:
Language rights have a totally distinct origin and role [when compared with the right to a fair trial]. They are meant to protect official language minorities in this country and to insure the equality of status of French and English.
 In Ndem v. Greenspoon,  O.J. No. 3269, 189 O.A.C. 140 (C.A.), at para. 15, this court stated:
Where, as in this case, the appellant has met the procedural requirements to trigger a right to a bilingual hearing, this right is more than purely procedural, it is substantive and the appropriate remedy is to set aside the order.
 Therefore, in my view, the appropriate disposition is to set aside the order and to refer the matter back to the court below. English and French are the official languages of the courts in Ontario, and the court has a responsibility to ensure compliance with language rights under s. 126 of the Courts of Justice Act. A proper interpretation of this provision is one that is consistent with the preservation and development of official language communities in Canada and with the respect and preservation of their cultures: see Beaulac, at paras. 25, 34 and 45. Violation of these rights, which are quasi- constitutional in nature, constitutes material prejudice to the linguistic minority. A court would be undermining the importance of these rights if, in circumstances where the decision rendered on the merits was correct, the breach of the right to a bilingual proceeding was tolerated and the breach was not remedied.
(c) Additional observations
 For the above reasons, I conclude that the appeal should be allowed. I am nonetheless mindful of the history of this case [page501] and do not turn a blind eye to the appellant’s conduct. To a certain extent, it would appear that he is responsible for some of the difficulties which arose in this case. Many different bilingual judges have presided over the appellant’s cases. As noted by the motion judge, in almost every instance the appellant has either criticized the judge or sent letters of complaint to various authorities, and has demanded the assignment of another judge.
 The appellant has moderated his position somewhat in this appeal. He has noted in his factum that [TRANSLATION] “Many judges are the subject of criticism and this does not prevent them from presiding dispassionately and with total impartiality”. He has also acknowledged that, given the principle of judicial independence, a complaint to the Minister of Justice does not affect the judge’s partiality. Despite this, the appellant should appreciate that the judges targeted by his criticisms will inevitably be hearing the various motions and proceedings in which he is involved.
 I conclude with the observation that it is somewhat troubling that although the motions below were brought as part of a bilingual proceeding with sufficient notice, no bilingual judge was available to hear them. [See Note 1 below]
 For these reasons, I would allow the appeal, set aside the judgment below, and refer the original motions to a bilingual judge of the Superior Court. In light of the circumstances, I would make no award of costs.
Note 1: The need ofr more bilingual judges in Ontario courtrooms, particularly Toronto, was noted by the Honourable Coulter A. Osborne, Q.C., in a recent report, Civil Justice Reform Project (November 2007), online: <www.attorneygeneral.jus.gov.on.ca/english/about/pubs/cjrp/>, at p. 13, where he stated:
. . . [D]uring consulations, an ongoing need was noted for the appointment of more bilingual judges, particularly in Toronto (including the Court of Appeal). Any future appointments should consider the need for bilingual judges in regions which at a practical level are required to provide bilingual trials.