Administrative law – Interpreters in court – Judges – Powers and duties – Judicial review – Parties – Standing – Procedural requirements and fairness – Bias – Jurisdiction – Standard of review – Reasonableness simpliciter
Sandhu v. British Columbia (Provincial Court, Judge),  B.C.J. No. 1052, 2012 BCSC 1064, British Columbia Supreme Court, July 17, 2012, J.M. Gropper, J.
Sandhu was retained to provide translation and interpretation services for Gordev Nahal (“Nahal”), who was a claimant in a small claims trial. Prior to the commencement of trial, McKinnon P.C.J. told Nahal that, if his English language ability was such that he was not comfortable with the court process, he could arrange for a court-certified interpreter. Just after the case was called, but prior to the commencement of trial, McKinnon P.C.J. told Sandhu “You are not on the list. You cannot act as an interpreter in this matter.” McKinnon P.C.J. then explained to Nahal, asking Sandhu to translate, that only a court-certified interpreter would be permitted. Nahal was offered an adjournment in order to demonstrate that Sandhu was a court-certified interpreter, or to retain an interpreter who was on the list. The trial was adjourned.
That afternoon, Sandhu returned, now represented by Ravi Hira, Q.C. (“Hira”). He argued that there was a list of interpreters on contract with the Ministry of the Attorney General available for criminal matters, and that Sandhu had previously been on that list. However, there was no “court-certified list of interpreters” for small claims or civil matters. McKinnon P.C.J. found that Sandhu lacked standing, and so declined to hear him or Hira. McKinnon P.C.J. refused the suggestion that a voir dire be held to determine the issue of Sandhu’s ability to interpret. The trial was adjourned.
Sandhu’s judicial review sought an order in the nature of certiorari. Generally, it is not appropriate for counsel on behalf of a tribunal to argue in favour of upholding the tribunal’s decision. However, counsel on behalf of the tribunal was permitted appear on this judicial review to make submissions because there was no other party to address Sandhu’s submissions, and he had alleged that McKinnon P.C.J. exceeded her jurisdiction, breached a duty of fairness and demonstrated a reasonable apprehension of bias. His petition impugned the Provincial Court Judge’s integrity and courtroom conduct, and sought special costs against MacKinnon P.C.J. personally.
On review, the Court found that there is no court-certified list of interpreters for the purposes of the Provincial Court. However, the Provincial Court Small Claims Handbook, which is distributed to the judges, references the term “court certified interpreters” several times. While there are no “court certified” interpreters, the evidence established that interpreters who agree to a criminal record check and demonstrate their accreditation as a court interpreter by a recognized institution may be included on Ministry of the Attorney General’s list of interpreters. Qualified interpreters are then offered contracts by the Ministry, providing they can be called on “as and when needed.” The list is then circulated to all provincial court registries. The “…list of interpreters maintained by the branch is not a list of interpreters who have been formally certified by the Provincial Court. It is a list of interpreters who have entered into an agreement with the Ministry as an accredited or non-accredited court interpreter and have demonstrated to the satisfaction of the Ministry that they are otherwise qualified to act as a court interpreter.”
The Court held that McKinnon P.C.J. made a “decision”, within the definition of the term in the Judicial Review Procedure Act. The decision was reviewable. “Almost all power exercised by a public authority may be reviewed by the court under the JRPA.”
Sandhu argued that he should have standing to bring this petition, as he had been prejudiced by the decision that he be denied the privilege and benefit of interpreting in Small Claims Court. The Court found that Sandhu lacked standing to bring the petition as he was a non-party, likened to an expert witness who is disqualified from giving evidence. It was suggested that the person who retained him to provide interpreter services might have Judicial Review Procedure Act standing, but the issue was not before the Court.
Sandhu argued that he was denied procedural fairness by the Provincial Court Judge’s refusal to hear him (or Hira on his behalf). Hira had not requested that Mr. Sandhu be granted standing.
Looking at the Baker factors (Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817) regarding procedural fairness, the Court held that the decision about whether an interpreter is qualified to interpret goes to ensuring a fair trial. The Provincial Court Judge considered the interpreter’s qualification in that context.
The Small Claims Act has, among its purposes, the mandate that proceedings be conducted in a “just, speedy, inexpensive and simple manner.” “Assessing the qualifications of every interpreter who appears in small claims court interferes with that purpose. A Provincial Court Judge is specifically imbued with the statutory authority to make a direction to achieve that purpose, including declining to hold a voir dire into the qualifications of the interpreter.” (para.54) An interpreter is a “non-party participant”.
The Court concluded that Sandhu was not owed a duty of fairness by the Provincial Court Judge.
The Court went on to consider the appropriate standard of review on the question of standing, if the decision that Sandhu lacked standing was wrong. The Court would have applied a reasonableness standard of review to this interlocutory decision of the Small Claims Court. Deference is to be granted to a Provincial Court Judge.
The decision to refuse Mr. Sandhu standing was reasonable. The judge had to conduct a proper and efficient trial. The requirement for an inquiry into each interpreter’s qualifications would be inconsistent with the Small Claims Act.
The direction that Nahal required an interpreter from the list maintained by the registry was within a range of possible, acceptable outcomes on the facts and law.
To stay current with the new case law and emerging legal issues in this area, subscribe here.