This article provides an overview of the language obligations set out in the Rules of Professional Conduct of the Law Society of Ontario (LSO Rules) and discusses the scope of “language rights” contemplated by the LSO Rules, including recent legislative changes regarding access to justice in French in the province.
Professional Obligations Regarding Languages Rights in Ontario
The LSO Rules prescribe the applicable standards to be followed in the provision of legal services in Ontario. In particular, Rule 3.2-2A of the LSO Rules sets out a lawyer’s obligation to advise a client of the client’s language rights. Those “language rights” stem from constitutional/legislative texts, case law and unwritten constitutional principles that have evolved over time and which we address further down. The ambiguous nature of the term “when appropriate” used in the Rule and the lack of clarity in the commentary may create difficulties in its application as it may be difficult to determine whether a potential client speaks French and wishes to proceed in French, especially at an early stage. Therefore, a good practice is to inquire (active offer) with a current or potential client about the official languages in which they can communicate, if any. In doing so, it becomes clearer for the lawyer to know when to inform a client of their language rights, especially when the client can communicate in French. The related commentary in the LSO Rules also provides that the lawyer is to inform the client of the client’s language rights as soon as possible and that the choice of language is that of the client, not the lawyer.
Insofar as the lawyer is not competent in the client’s chosen language to provide the required services, Rule 3.2-2B of the LSO Rules provides that the lawyer shall not undertake the matter unless the lawyer is otherwise able to competently provide those services and the client consents in writing. The related commentary also specifies that when a lawyer considers whether to provide the required services in the client’s chosen language, the lawyer should carefully consider Rule 3.1-2 of the LSO Rules and its related commentary regarding the standard of a competent lawyer.
Recent Legislative Changes Regarding Access to Justice in French in Ontario
The above-noted Rules of Professional Conduct (and related commentary) were adopted in their current form in 2015 after, inter alia, the publication of the report entitled “Access to Justice in French” by Justice Paul Rouleau and Paul Le Vay. The report highlighted the efforts made by governments in Ontario over the years to expand access to justice in French in the province. However, the main shortcomings identified in the report concerned (i) inadequate knowledge of language rights on the part of the judiciary, and (ii) lacking French-language services in the judicial system caused by legislative inconsistencies.
Concurrently, on May 29, 2015, the Seamless Access to Justice in French Pilot Project introduced by the Ministry of the Attorney General (MAG) in collaboration with the Chief Justices of Ontario was implemented at the Ottawa Courthouse. The Pilot Project would eventually serve as a model for subsequent legislative changes. We note that access to French-language services is a quasi-constitutional right under the Criminal Code (CC), the Courts of Justice Act (CJA) and the French Language Services Act (FLSA), which are discussed below.
Finally, on February 16, 2021, Bill 245, Accelerating Access to Justice Act, 2021 was introduced in the Ontario Legislature and received Royal Assent on April 19, 2021. Bill 245 expands the fundamental right to a bilingual proceeding under section 126 of the CJA, namely the right to file pleadings or other documents in French is extended to all courts throughout Ontario, instead of being limited to some courts and areas designated by the CJA. Francophone litigants will be able to exercise their language rights under the CJA throughout the province, in all types of proceedings, and will have improved access to document translation services. These changes will come into effect on February 1, 2022 as outlined in the MAG’s News Release of September 24, 2021.
We also note that these legislative amendments, once they come into force, will ensure that the new rights will be similar to those conferred under Part III of the Official Languages Act (OLA), namely the right of the litigant to use either official language in any federal court, or in any pleading or process issuing from any federal court.
Scope of “Language Rights” in the LSO Rules
Although the term “language rights” is not clearly defined in the LSO Rules, it is incumbent on lawyers to understand the scope of these rights. Whether under the Constitution Act, 1867 (e.g., section 133), the Canadian Charter of Rights and Freedoms (e.g., subsection 19(1)), federal statutes (e.g., Part III of the OLA), provincial statutes, territorial statutes, or even stemming from case law or unwritten constitutional principles; all will depend on the client’s particular matter.
By way of examples only, here is an overview of some of these pieces of legislation (the CJA has been omitted given its reference in the aforementioned paragraphs):
- The FLSA – The FLSA provides for the right to communicate in French with (and to receive services from) any head or central office of a government agency or institution of the Legislature and in respect of any other office of such agency or institution that is located in or serves one of the 26 designated areas under the FLSA. The FLSA therefore plays an important role in terms of access to justice in French, including, inter alia, the right to services in French from the MAG’s court administration offices (Court Services Division) according to the provisions of the FLSA. It is also important to consider any and all administrative tribunals which are subject to the FLSA for the purposes of access to administrative justice in French.
- The CC – The provisions relating to the language rights of accused persons whose language is one of the official languages of Canada are set out in Part XVII of the CC. See also subsection 849(3) and paragraph 638(1)(f) of the CC.
- The Health Professions Procedural Code (HPPC ), being Schedule 2 of the Regulated Health Professions Act, 1991 – Inter alia, subsection 86(1) of the HPPC provides that a person has the right to use French in all dealings with a College of a health profession or group of health professions established or continued under a health profession Act. Recently in Bélanger c. L’Ordre des médecins et chirurgiens de l’Ontario, 2021 ONCS 5132, the Divisional Court found that subsection 86(1) of the HPPC gives a presumptive right to a disciplinary hearing before a panel that can understand and speak French.
In short, it is important to reiterate that the aforementioned comments are not exhaustive and that there are several sources that recognize the language rights of clients in a judicial and quasi-judicial context.
ABOUT THE AUTHORS
Jean-Michel Richardson: Jean-Michel is a research lawyer with Emond Harnden L.L.P. and a member of the Ontario Bar Association’s Official Languages Committee.
Kenza Salah: Kenza is an associate, intellectual property with Osler, Hoskin & Harcourt L.L.P. in Ottawa and the vice-president of the Ontario Bar Association’s Official Languages Committee.
ABOUT THE OFFICIAL LANGUAGES COMMITTEE
The Ontario Bar Association’s Official Languages Committee was founded in the 1980s to promote an equal access to justice in French within Ontario’s legal system and community. For more information, visit our website.