Dehenne v. Dehenne*
47 O.R. (3d) 140
 O.J. No. 4745
Dossier No. 99-CV-175704
Superior Court of Justice
December 15, 1999
*Note: This judgment was originally released in French and was translated into English for the Ontario Reports.
Mental health — Incompetent person — Application to appoint guardian — Procedure — Office of Public Guardian and Trustee replying in English to application in French to appoint guardian of respondent’s property — One of two persons who assessed respondent’s capacity unilingual anglophone who required services of interpreter — List of assessors in Toronto area not including enough people capable of conducting assessment in French — Claim by Office of Public Guardian and Trustee for payment for reviewing application for appointment of tutor disallowed.
After the respondent suffered a cerebral haemorrhage, the applicant brought an application to appoint a guardian of the respondent’s property.
Held, the application should be granted.
In response to an application in French, the Office of the Public Guardian and Trustee replied in English only, thus breaching the letter and spirit of the French Language Services Act, R.S.O. 1990, c. F.32. Moreover, one of the two persons who assessed the respondent’s capacity was a unilingual anglophone who required the services of an interpreter. The list of assessors in the Toronto area did not include enough people capable of conducting an assessment in French, which is one of the two official languages of the Ontario courts. The claim of the Office of the Public Guardian and Trustee for payment for reviewing the application was disallowed.
Cases referred to
R. v. Beaulac,  1 S.C.R. 768, 173 D.L.R. (4th) 193, 238
N.R. 131, 62 C.R.R. (2d) 133, 134 C.C.C. (3d) 481 (sub nom.
Beaulac v. Canada (Attorney General)); Reference re Secession of Quebec,  2 S.C.R. 217, 161 D.L.R. (4th) 385, 228 N.R.
203, 55 C.R.R. (2d) 1
Statutes referred to
Courts of Justice Act, R.S.O. 1990, c. C.43, s. 125(1)
French Language Services Act, R.S.O. 1990, c. F.32, ss. 5(1), 7 Substitute Decisions Act, 1992, S.O. 1992, c. 30
Rules and regulations referred to
Capacity Assessment Regulation, O. Reg. 293/96 (Substitute Decisions Act)
APPLICATION for an appointment of a guardian of the respondent’s property.
Grard Lvesque, for applicant.
 BEAULIEU J.: — The respondent had a cerebral haemorrhage on May 29, 1999. As his bills had not been paid since that time, it was urgently necessary to appoint someone to be responsible for managing his property. When, on September 13, 1999, I heard the application, I accepted counsel for the applicant’s argument and signed the order as submitted. I then asked counsel for the applicant to put his argument in writing so I could take it into account in the reasons I am delivering today.
 In the Reference re the Secession of Quebec,  2
S.C.R. 217, 161 D.L.R. (4th) 385, the Supreme Court of Canada noted that the Constitution is more than a written text, it also embraces the entire system of rules and principles governing the exercise of constitutional authority. Among these rules and principles, the protection of minorities has been given particular importance by the country’s highest court.
 In R. v. Beaulac,  1 S.C.R. 768, 173 D.L.R. (4th) 193, the Supreme Court had occasion to review this point. Although that case related to the language of a criminal trial, the court laid down the principles which should henceforth guide the courts in interpreting language rights (at p. 788):
Les droits linguistiques . . . ne peuvent tre exercs que si les moyens en sont fournis. Cela concorde avec l’ide prconise en droit international que la libert de choisir est dnue de sens en l’absence d’un devoir de l’tat de prendre des mesures positives pour mettre en application des garanties linguistiques . . .
Language rights . . . can only be enjoyed if the means are provided. This is consistent with the notion favoured in the area of international law that the freedom to choose is meaningless in the absence of a duty of the State to take positive steps to implement language guarantees . . .
 Language rights are accompanied by a duty: the state recognizing them has an obligation to take steps to give effect to them. Inaction amounts to non-recognition of language rights, which may be penalized by the courts. As Bastarache J. wrote, for the majority of his fellow judges on the Supreme Court (at p. 791):
Les droits linguistiques doivent dans tous les cas tre interprts en fonction de leur objet, de faon compatible avec le maintien et l’panouissement des collectivits de langue officielle au Canada . . .
Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada . . .
 Where they apply, language rights must be interpreted as an essential tool for the maintenance and protection of official language communities. Administrative inconvenience should not be regarded as a bar to the performance of governmental duties, or as a justification for minimizing them.
The French Language Services Act
 In 1984 the Ontario Legislative Assembly gave French official status. Section 125(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that:
125(1) Les langues officielles des tribunaux de l’Ontario sont le franais et l’anglais.
125(1) The official languages of the courts of Ontario are English and French.
 In 1986 the Ontario Legislative Assembly adopted the French Language Services Act, R.S.O. 1990, c. F.32. Section 5(1) of that Act describes the right to service in French as follows:
5(1) Chacun a droit l’emploi du franais, conformment la prsente loi, pour communiquer avec le sige ou l’administration centrale d’un organisme gouvernemental ou d’une institution de la Lgislature et pour en recevoir les services. Chacun jouit du mme droit l’gard de tout autre bureau de l’organisme ou de l’institution qui se trouve dans une rgion dsigne l’annexe ou qui sert une telle rgion.
5(1) A person has the right in accordance with this Act to communicate in French with, and to receive available services in French from, any head or central office of a government agency or institution of the Legislature, and has the same right in respect of any other office of such agency or institution that is located in or serves an area designated in the Schedule.
 Section 7 sets out the scope of these rights as follows:
7. Si toutes les mesures raisonnables ont t prises et que tous les projets raisonnables ont t labors afin de faire respecter la prsente loi, les obligations qu’elle impose aux organismes gouvernementaux et aux institutions de la Lgislature sont assujetties aux limitations raisonnables et ncessaires qu’exigent les circonstances.
7. The obligations of government agencies and institutions of the Legislature under this Act are subject to such limits as circumstances make reasonable and necessary, if all reasonable measures and plans for compliance with this Act have been taken or made.
 The Office of the Public Guardian and Trustee is part of the Ontario Ministry of the Attorney General, to which the French Language Services Act applies. Like the Attorney General, the Public Guardian and Trustee has a duty to take the necessary steps to effectively implement language rights and cannot allege a lack of human or financial resources in an effort to justify an obstacle to carrying out his language responsibilities.
The Breach of the Letter and Spirit of the French Language Services Act
 The Public Guardian and Trustee has special responsibilities to persons declared incapable of managing their affairs and persons declared incapable of caring for themselves. The Public Guardian and Trustee cannot himself be incapable in one of the two official languages of the Ontario courts.
 In this case, in response to an application made in French, the Office of the Public Guardian and Trustee replied to counsel for the applicant in English only, which is a breach of the letter and spirit of the French Language Services Act. The Office of the Public Guardian and Trustee has a duty to reply in French to communications he receives in French. The intervention of this court should not be necessary to reinforce this right.
 The Public Guardian and Trustee also asked the court to include an English text in an order although the application for that order was made in French, which is manifestly to disregard the status of French as an official language of the Ontario courts.
 It should be noted that following the order of September 13, 1999 the Office of the Public Guardian and Trustee in a letter dated September 28, 1999, recognized its mistake in not replying in French to the application made in French. The Office of the Public Guardian and Trustee thus tendered its apologies to the court. The court is encouraged by the commitment given by the Office of the Public Guardian and Trustee, which will henceforth observe the duties imposed by the letter and spirit of the French Language Services Act.
The Right to the Use of French is not the Right to an Interpreter
 The documentary evidence used at the hearing of the application indicated that one of the two persons who assessed the respondent’s capacity was a unilingual anglophone and, on that occasion, he obtained the services of an interpreter. The Office of the Public Guardian and Trustee publishes the qualifications of persons who are qualified to assess the mental capacity of an individual to take certain decisions about his property or the care of his person under the Substitute Decisions Act, 1992, S.O. 1992, c. 30. According to O. Reg. 293/96, in order to be authorized to assess capacity, a person must be a member of the College of Psychologists of Ontario, the College of Certified Social Workers of Ontario, the College of Occupational Therapists of Ontario and the Ontario College of Nurses. The persons assessing capacity must also have taken a training course given or approved by the Attorney General and passed the examinations forming part of that course.
 It appears from the list of the assessors obtained from the Office of the Public Guardian and Trustee that the list of assessors in the Toronto area does not include enough people capable of giving an assessment in French. The list identifies assessors able to use (directly or through an interpreter) German, Bengali, Cantonese, Chinese, Spanish, Welsh, Hebrew, Hungarian, Hindi, Italian, Mandarin, Polish, Portuguese, Punjabi, Serbo-Croatian, Telugo, Toishan, Yiddish and French. The list does not take into account the fact that French is one of the two official languages of the Ontario courts. Only a person identified as an assessor able to use French is capable of doing his work in French. The right to the use of French is not a right to an interpreter: French-speaking families who pay a professional to assess a person’s capacity are entitled to an assessment conducted in French (without the assistance of an interpreter) and the preparation of a report in French. The Office of the Public Guardian and Trustee should certify a sufficient number of assessors to ensure an assessment in French and the preparation of the assessment report in French.
Documents Should Be Disclosed before Eve of Hearing
 The respondent’s family situation is a special one. Unknown to the applicant, a companion gave the Office of the Public Guardian and Trustee an affidavit signed on July 9, 1999. On the eve of the hearing of the application the Office of the Public Guardian and Trustee sent this affidavit to the court and gave a copy to counsel for the applicant. As the companion claimed that there was no objection to the possible application for a tutor to be appointed for the individual’s property, the Office of the Public Guardian and Trustee should have asked that a copy of the affidavit be given to the applicant.
 The Office of the Public Guardian and Trustee should avoid appearing to take part in intrigues. The affidavit submitted to the court on the eve of the hearing had been superseded by an agreement signed on September 3, 1999 between the members of the respondent’s family and the companion, a copy of which was given to me at the hearing. If the affidavit had been given to the applicant at the proper time, time and money could have been saved in preparing the application.
 These reasons explain my order of September 13, 1999, and in particular my decision not to allow the Office of the Public Guardian and Trustee of the amount it is authorized to claim for reviewing an application for the appointment of a tutor.
 The order of September 13, 1999 appoints the respondent’s son trustee of his father’s property. In the circumstances, the phrase “guardian of the property” should have been used.