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Industrial Alliance Insurance and Financial Services was represented before all levels of courts

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Industrial Alliance Insurance and Financial Services Inc.

On November 16, 2018, the Supreme Court of Canada ruled in favour of Industrial Alliance Insurance and Financial Services Inc. (IA) in a case involving the right of any individual to express himself or herself in the official language of his or her choice before any federal court or tribunal in Canada.

On its face, Kassem Mazraani’s original 2016 Tax Court of Canada (TCC) case against the Minister of National Revenue, had nothing to do with language rights. At issue was whether he was an employee or an independent contractor. Mazraani’s employer, our client, IA, intervened since the verdict would have major ramifications for the company, which employs 400 other insurance agents as independent contractors.

At the trial, IA’s first witness asked to testify in French. Although the judge said an interpreter could be brought in, he also warned it would postpone the hearing until one was found. Pressured by the judge, a compromise was worked out for the first witness, who agreed to speak English. Unfortunately, this compromise was later imposed on other Francophones without their free and informed consent. For the next six days, when other IA witnesses spoke in French the judge would interrupt them and suggested or insisted they speak in English —ultimately transforming the focus of the case from tax issues to language rights. Mazraani won the TCC case and IA appealed all the way to the Supreme Court of Canada (SCC).

The SCC unanimously found that these language rights “violations were numerous and, in some cases, serious and repeated, and they brought the administration of justice into disrepute.” The SCC also ruled that the “judge should have intervened to explain that the right to testify in the official language of one’s choice is unconditional.” Mazraani v. Industrial Alliance Insurance and Financial Services Inc., 2018 SCC 50, not only preserved the right of IA to obtain a new and fair trial, but also confirmed broad protection for minority language rights in the federal civil justice system. This is now the leading language rights case under the federal Official Languages Act, and will likely be applied to many provincial statutes as well. It will also govern how language rights apply in Quebec courts via section 133 of the Constitution Act, 1867.

A Fasken team represented IA in this case. Yves Turgeon, who led the team, represented IA all the way from the TCC to the SCC. Yves was joined by Paul Côté-Lépine in the Federal Court of Appeal, and by both Paul and Michael Shortt in the SCC. Yves and Michael Shortt each argued for 20 minutes before the SCC (in both English and French). Thanks to their work, when a person now asks a judge for permission to speak in the official language of his or her choice, the judge’s answer must always be “yes”.


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