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This Week at the SCC (26/07/2013)

A Commentary on Recent Legal Developments by the Opinions Group of McCarthy Tétrault LLP

Posted in This Week at the SCC
Brandon Kain

The Supreme Court of Canada released one decision this week of interest to Canadian businesses and professions.

In Conseil scolaire francophone de la Colombie‑Britannique v. British Columbia, 2013 SCC 42, Wagner J. for the majority held that documents submitted to the British Columbia courts for use in civil proceedings (in this case, affidavit exhibits) must either be in English, or accompanied by an English translation.  Wagner J. based his judgment not only upon Rule 22-3 of the B.C. Supreme Court Civil Rules (which provides that “every document prepared for use in the court must be in the English language”), but also upon a 1731 English statute that he found was received into British Columbia law under the s. 2 of the B.C. Law and Equity Act.  The 1731 statute requires that all “proceedings” – including therefore the taking and admission of evidence – be in English.  Wagner J. held that this conclusion was not inconsistent with Charter values, since the Charter does not require any province other than New Brunswick to provide for court proceedings in both official languages.

In a dissent, Karakatsanis J. would have found that the B.C. courts possessed inherent jurisdiction to permit the admission of French language docouments where this would ensure the administration of justice according to law in a regular, orderly and effective manner.

The most interesting aspect of the majority’s decision was Wagner J.’s discussion of the doctrine of reception.  Section 2 of the Law and Equity Act, in common with the reception statutes of some other provinces (e.g., Manitoba and Saskatchewan), provides that the laws of England in existence on the reception date (in B.C., November 19, 1858) are only in force in British Columbia to the extent they are “not from local circumstances inapplicable”, and only then to the extent they have not been “modified and altered” by subsequent domestic legislation.  Wagner J. held that this applicability test does not require the English law to be necessary in the receiving province, only that it be suitable to local circumstances there, which is to be assessed but once, on the relevant reception date (rather than on an ongoing basis, each time a party seeks to rely upon the English law).  As well, Wagner J. held that the modification test allows for the possibility of an implied and not merely express modification to received English law, and that such an implied modification can occur where domestic legislation merely “occupies the field”, even if it does not actually conflict with the English law.

Applying these tests in Conseil, the majority concluded that the 1731 statute remained in force in British Columbia, since it was suitable to local circumstances there on November 19, 1858, and was not implicitly modified by Rule 22-3 given that it was broader than the latter instrument (having application to all court proceedings, as opposed merely to documents filed in court).

The McCarthy Tétrault Opinions Group consists of members of the firm’s litigation department whose practices focus on written advocacy and the provision of strategic advice and opinions in the context of complex business disputes and transactions.  The members of the Opinions Group are Anthony Alexander, Martin Boodman, Brandon Kain, Hovsep Afarian and Kirsten Thompson.