Parliament’s latest expansion of the court’s official language translation obligations attracted little attention within the Canadian legal community.
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Federal Court Chief Justice Paul Crampton
As a result, hundreds of precedential decisions annually will go to the front of the court’s translation queue, which the court doesn’t have an adequate budget to handle, Chief Justice Crampton said in an exclusive interview.
This, in turn, will have knock-on effects, he said, including delaying for months the translation of thousands of non-precedential rulings, which the Official Languages Act (OLA) permits to be issued in just one official language initially but then requires to be translated into the other official language “at the earliest possible time.”
“This is a real access to justice issue for us,” Chief Justice Crampton said. “The major bulk is going to be immigration [precedents]. But then we’ve got intellectual property [decisions], and this is going to be a real issue for drug patents. If we can’t get the decisions out, then the generic [drug] is not going to be able to launch and the public’s not going to have the benefit of these cheaper drugs until we can get these decisions out. And obviously the longer the decision, the more [time] it’s going to take to translate it, … So we’re looking at time periods of 10 and 12 weeks for the longer types of decisions, if we’re lucky. And that’s just the ones that are precedential.”
The itinerant national trial court issues many thousands of judgments annually in administrative law, Aboriginal law, citizenship, immigration and refugee law, class proceedings, intellectual property, national security and maritime and admiralty law.
Yet the 2024 federal budget gave the Federal Court just a fraction of the funding it asked for and needs to carry out its expanded translation duties, Chief Justice Crampton said.
“We got $9.6 million for three years, without any ongoing funding, and we asked for $84 million over six years and $15 million in ongoing” annual funding,” Chief Justice Crampton disclosed.“We got a fraction of what we asked for. … So we’re now expected to get these decisions out without the resources that we need.”
The upshot is that “people are going to be waiting for their decisions longer,” he said.
A catalyst for the latest expansion of the federal courts’ obligation to make decisions available simultaneously in both official languages was a 2016 report from the Commissioner of Official Languages, who investigated six complaints from 2007 to 2011 that the Courts Administration Service (CAS), which is responsible for posting Federal Court decisions, was not fulfilling its language obligations when posting decisions by the Federal Court, the Federal Court of Appeal and the Tax Court of Canada on the courts’ respective websites.
The Official Languages Commissioner said disagreement over what the OLA required should be clarified legislatively or be settled by a reference to the Supreme Court of Canada. In 2017, the House of Commons Standing Committee on Official Languages tabled its own report, recommending that the federal government clarify the courts’ obligations, including by setting out criteria for court decisions that must be made available simultaneously due to their importance within the meaning of OLA s. 20.
What Federal Court rulings are deemed “precedential” is decided by that court and its 46 judges (including five vacancies, as of Sept. 1, 2024).
The new requirement adds a third category to the Federal Court’s previously existing obligation to simultaneously issue rulings in both official languages when (1) “the decision, order or judgment determines a question of law of general public interest or importance” or (2) when the proceedings leading to the issuance of the ruling “were conducted in whole or in part in both official languages.”
In an effort to ward off the growth in translation delays, Chief Justice Crampton said the CAS — which is the registry for the Federal Court, the Federal Court of Appeal, the Tax Court and the Court Martial Appeal Court of Canada — is making an “off-cycle” request to the government to fund the critical translation resources.
Meanwhile, CAS has also looked into off-the-shelf neural machine translation products as a potential way “to help us cope with these amendments and minimize, or at least reduce, the time that’s going to be required to get these decisions out,” Chief Justice Crampton said.
He estimated the Federal Court issues “many hundreds” of precedential rulings, i.e. between 1,000 and 2,000. “We’re talking a large number of decisions,” he said. “So people are going to be waiting for their decisions longer. We won’t be able to give them their decisions” until they’re translated.
The chief justice said the inadequate funding for translation also impacts the thousands of Federal Court decisions that the OLA does not require to be posted simultaneously in both official languages but which the Act stipulates must be translated “at the earliest possible time.”
“They’re going to get a back seat because all of … the limited resources we did get — $9.6 million — are going to go to … precedential” rulings, Chief Justice Crampton explained. “So these other ones are going to go to the back of the line, and we won’t be getting them translated for over a year.”
This doesn’t “technically” breach the OLA, nor is it reflective of the law’s “spirit,” the chief justice suggested. “‘The earliest possible time’ is going to get longer than it was before the [(s. 20(1) (a.1)] amendment,” he predicted. “So it’s a real issue for us.”
However, the OLA does create an exception to its requirement that the court’s precedential decisions and those of general public interest/importance must be made available simultaneously in both official languages.
OLA s. 20(2)(b) stipulates the court may make rulings available in English and French versions, at different times, where “the court is of the opinion that to make the decision, order or judgment, including any reasons given for it, available simultaneously in both official languages would occasion a delay prejudicial to the public interest or resulting in injustice or hardship to any party to the proceedings leading to its issuance.”
“We may have to rely on this [provision] a little bit more,” Chief Justice Crampton observed.
Photo of Federal Court Chief Justice Paul Crampton: Balfour
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