Laws in Multilingual Countries - The Pitfalls of Nuance

Factual Questions
61

But this isn’t a classic contract. It’s a mixture of a contractual analysis and a statutory order by the CRTC.

Rogers and Bell-Aliant are telcos in competition. Rogers has no right at common law to string its wires on Bell-Aliant’s poles, and there is no way in hell that Bell-Aliant would agree to let Rogers string its wires, except at a cost that would make Rogers’ service too pricey for consumers. By getting the infrastructure first, Bell-Aliant has a competitive advantage.

CRTC doesn’t like it when one telco has a built-in competitive advantage from its infrastructure. So it has regulations which require one competitor to share its infrastructure with another competitor, to make sure that consumers have choice of service. It sets out the outline of the conditions for both competitors to use the infrastructure. If the parties don’t agree, or agree on terms that create a duopoly that doesn’t give choice to consumers, CRTC can impose conditions on the terms it’s already set out in its general regulations.

It’s a policy that requires sharing of infrastructure, even if the owner of the infrastructure doesn’t want to, because federal law compels it to do so. That’s not a contract, in the classic sense of a meeting of minds.

And that’s why the SCC decision didn’t have any clauses preserving existing agreements, and why the NBCA said it wasn’t a contract and rejected contract analysis (like frustration). If CRTC lacked any authority to require Bell-Aliant to maintain this arrangement under federal law, because it was power poles, not telephone poles, then the arrangement ceases to have any legal meaning. It’s not a contract, because Bell-Aliant did not freely enter it in the first place, but was required to do so by the CRTC orders. And that is also why the French version entered the analysis, tangentially: was there any hope for Rogers from the French terms and conditions that the CRTC set? (because the CRTC’s orders are valid in both languages)

(Again, lot’s of extrapolation here on my part. I’ve just read the headnotes to the cases. Kids, do not rely on these posts if you are going to start stringing telco wires!)

62

I’m surprised nobody argued that once the Aliant wires were installed, that made it a CRTC-controlled “telephone pole” too.

63

Interesting question. The poles in this case were still owned by the NB Power corp, and used for power purposes. Don’t know if the issue came up in subsequent cases, after the SCC case.

64

It’s at least possible, though, that due to an outright mistake, the two languages of the law might be completely in conflict, with both being unambiguous and having no overlap. In such a case, there must be some way to decide which version is correct and which is the mistake, and it seems reasonable to say that the original is correct and that the mistake is in the translation.

65

Except under the case law developed in Canada under s. 133, both language versions passed by the National Assembly or by Parliament are the original. Neither is a translation of the other.

66

I am not a lawyer and my understanding of law feeble compared to our esteemed expert. My limited understanding was in Canada both French and English laws are equally true and original. In cases of ambiguity, the first thing is a common sense interpretation of what the laws actually say (in both languages) and perhaps what they are trying to do (including cases involving previous interpretations). In cases where there is a significant difference, I believe it is interpreted to favour the defence or use the more lenient language, but the law might be suggested for redrafting. If doubt this occurs very often. I might be wrong about my impressions.

67

Well, it’s a pole that also carries CRTC-jurisdiction wires. Seems to pretty much define what they are allowed to mandate about, unless the rules said only carries communication wires.

I had a friend who was involved in Manitoba Hydro when the laying of fiber optic cables was first becoming a thing. Manitoba Hydro ran internal fiber optic network capability along their cross-country power lines to manage remote dams. I wonder what that would do to the jurisdiction issue, if it carries private communication cabling.

… but I digress. This is why lawyers get the big bucks. They also get the headaches.

68

This is true. However, there have been several governments in Quebec who have an inferiority complex and along with that a valid concern that the French culture will be ovrwhelmed by the wave of surrounding English media. It has been a crowd-pleaser with their constituency to try to elevate French at the expense of English (and others). There’s no brownie points for the more moderate Quebec governments in defending English. Each time they go too far, the federal courts straighten them out until the next go-round. Eglish signs were forbidden… that was not legal. Then, English signs in businesses must be noticeably smaller than the mandatory corresponding French sign. Movies could not be shown in theatres until the French-dubbed version was available too. Students could only attend English schools if their parents had attended English schools in Quebec. etc. (My favourite news story was the the nurse, born and raised in French, who was denied a nursing license for failing the mandatory French proficiency test.)

But generally, French and English are equal in Canada.

69

Just noticed this. Saskatchewan is the outlier. Most laws are in English only, but about 50 laws are bilingual, mainly relating to government structure, the courts, education, family law, and human rights.

70

Going to an English university in Montreal at a time when these issues were particularly salient has given me opinions. I disagree the federal government is doing enough “straightening”. Yet I understand all views and also think more Canadians should learn and speak French and in particular Québécois French, or at the very least make students better understand the many subtleties of this complex language.

I took several French classes with Francophones from France both bemused quite frustrated by these subtleties. There are parts of Québec where francophone Québeckers struggle to communicate.

71

As I thought, and just my point.

72

My stepmother lived in France for a while, and when we went to see the movie Mon Oncle Antoine she laughed when one of the characters was cursing out the other. She says what he essentially said, to modern French ears, was “thou drunken fool!”. Common Quebec swear words are for “tabernacle” and “chalice” relating to the religious bent of the language when it became fairly isolated from France.

The issue about movies needing a French dub was particularly troublesome because Hollywood tends to wait for the France release of movies to do the dubbing in Parisian French. France viewers feel a Quebecois accent was not generally what they wanted to hear, so Hollywood would not dub them earlier for a small Quebec market. Theatres were concerned that they could not show English versions of movies until well after the North American hype had died down. (Imagine if all our foreign movies were dubbed with a strong Australian or Yorkshire accent).

Always politics. Like the more moderate Quebec governments, the Feds also don’t get brownie points for defending English rights in Quebec, and no party wants to abandon the French vote. It’s a much smaller issue for English Canadians outside Quebec. Confrontation over the issue would just exacerbate the divide. I think most governments just hope the issue will fade away - which is why many of these difficult decisions come from the courts.

Good thing the USA doesn’t have the problem that political spinelessness leaves difficult decisions up to the courts.

73

Good thing that. Of course, Quebec has long encouraged its own vedette system of popular culture, which from time to time becomes trendy in other parts of the Francophonie.

74

Quebec official policy is, from all I’ve read, so relentlessly hostile to English that I would probably long ago have moved out if I were an Anglophone living there.

75

Many have. I remember talking to a lady who was a rabid NDP party member (the very leftist third party in Canada) and for all her extremely liberal views, she exploded with hostility when Quebec language law was mentioned - “They have the nerve to tell me I’m not welcome in the province where I was born!!” She had moved out of Quebec.

Just as a side note, there is the requirement that some certain members of the Candaian Supreme Court must be proficient in Quebec’s civil law. There was a minor political upset when the Prime Minister (Harper?) tried to nominate a judge despite being warned that the person did ot meet the criteria to serve in th SC. I gather like some US politico’s he was trying to push someone with the “correct” views and blamed the law society and other judges for improperly sticking their nose into the process when they pointed this out.

76

Our family did exactly that, way back in 1977.

77

To put a finer point on it, three judges on the Supreme Court must be from Quebec. See the Supreme Court Act, R.S.C., 1985, c.-S-26, at s. 6:

I would presume that such judges would have a better-than-average understanding of Quebec’s civil law code, so their appointment makes sense, since matters can arise under that code. It also makes it likely that at least some of the justices would speak French, which can be used in the SCC. But neither point is mentioned in the Supreme Court Act, just that three of the justices must be from Quebec.

I do recall when a PM (might have been Harper, as you wondered) tried to appoint somebody to the court, and some kind of uproar about it, but I don’t remember the details.

78

Perhaps it was a conservative Anglophone appointee who happened to be from the province?

79

The judge was Marc Nadon. He was likely somewhat conservative (hard to tell in a system where judges cut ties with politics), but Prime Minster Harper nominated him.

He was bilingual, English as a first language, French as the language of his education and most of his working life. His mother was bilingual, Ukrainian-English, his father was bilingual, French-English.

The issue was whether he was qualified to be on the Supreme Court. The Supreme Court Act has somewhat different requirements for a candidate from Quebec, compared to a candidate from the rest of Canada.

To be appointed from Quebec, a candidate had to be a judge of one of the superior courts of Quebec (Superior Court or Court of Appeal), or be “among the advocates of that province”.

To be appointed from any of the other provinces, a candidate had to be a judge of a superior court, or had 10 years membership in the bar of a province.

The problem for Nadon was the difference in wording about the bar: “among the bar of the province” implies that the individual either had to be on one of the Quebec superior courts, or currently a member of the bar of Quebec.

The wording for the rest of the country was more general: to be on a provincial superior court, or having had ten years at the bar before being appointed.

The difference in wording was likely to ensure that only someone skilled in Quebec’s civil law could be appointed.

Nadon, however, was not a judge of one of Quebec’s superior courts, nor was he at that time a member of the bar. He had been a member of the bar of Quebec, but then was appointed to the Federal Court of Canada. At the time he was appointed to the Supreme Court, he was therefore not a member of the Quebec bar, nor a judge of one of the superior courts of Quebec.

The Supreme Court, by an 8-1 majority, held that meant he was not eligible to be appointed to the SCC.

The broader wording for the SCC seats outside meant that this issue didn’t arise for Federal Court judges from other provinces, provided that they had been a member of the bar of one of the other provinces for at least ten years prior to being appointed to the Federal Court.

80

I’m going to hazard a guess that the requirement was to ensure the nominee was current on the intricacies of Quebec law (civil code). Having been a member of the bar once upon a time (for 10 years) years ago was probably considered not necessarily good enough. Particularly, I wonder what “advocate” means? Is it just because it’s French for lawyer, or does it mean they must have been practicing in courts, not just consulting on a narrow area of law?

After all, if there are only 3 SCC judges qualified for civil code, one presumes there is a stronger onus to ensure they are conversant in that law.