Employee or contractor? Supreme Court sidesteps issue to rule on language rights

Supreme Court of Canada building in Ottawa, Canada — © josefpittner / 123RF Stock Photo

The Supreme Court of Canada has confirmed that a judge violated the language rights of several Industrial Alliance Insurance and Financial Services Inc. (IA) employees who testified in a Tax Court case about whether IA insurance reps are employees or contractors.

In the 2016 Tax Court of Canada (TCC) case, an insurance representative who had been dismissed from IA argued that he qualified for unemployment benefits, despite the fact that his contract stipulated he was self-employed. The TCC ruled in favour of the rep, Kassem Mazraani, finding he was indeed an employee and throwing into question IA’s business model.

IA appealed the case, which made its way to the Supreme Court of Canada (SCC). In a decision released Nov. 16, the SCC ruled that the Tax Court must hear the case again because some witnesses were not permitted to testify in French.

“The [language rights] violations were numerous and, in some cases, serious and repeated, and they brought the administration of justice into disrepute,” wrote the SCC in its decision.

Mazraani, who has represented himself throughout the last six years, wrote in a memorandum to the SCC that the legal process has been a “slow kill,” particularly because his employment status is still not resolved. He saw the language issue as tangential, writing, “I strongly refuse to be a part of the language issue. It is a political issue.”

Of his motivations, he said, “This case [concerns the] public interest and it is a protection [sic] to every financial advisor who [has] suffered from financial institutions’ exploitation by working hundreds of hours for free.”

Facts of the case

In 2012, after Mazraani had worked for six months as an insurance representative, IA terminated his contract because he had not made any sales for five consecutive weeks.

Following that, Mazraani asked the Canada Employment Insurance Commission to consider his IA work to be employment so he could qualify for unemployment insurance. When both the commission and the Canada Revenue Agency denied this request, he appealed to the TCC.

At first, Mazraani and the Minister of National Revenue were the only parties involved in the proceedings. However, IA intervened because Mazraani had signed IA’s standard contract; if the court ruled in Mazraani’s favour, it could affect the employment status of the other 400 insurance reps contracted with IA. “The case was calling [IA’s] business model into question,” the SCC wrote in its judgment.

As such, the majority of witnesses were affiliated with IA.

Lost in translation

The TCC judge began the proceedings in English. IA’s lawyers had drafted key documents in French; Mazraani said he was more comfortable in English. Yet, in the SCC’s opinion, “The judge did nothing to […] ensure that everyone understood their language rights.”

On the second day of the hearing, Industrial Alliance’s first witness asked to testify in French. The judge offered to bring in an interpreter but warned that doing so would postpone the hearing for a day. As such, the witness agreed to speak in English, using a few French words.

Throughout the rest of the six-day hearing, the judge continued to speak in English and insisted that IA’s witnesses do the same. Further, the judge interrupted and admonished IA’s witnesses when they spoke in French or tried to request language accommodations.

“The judge should have intervened to explain that the right to testify in the official language of one’s choice is unconditional,” the ruling said.

The TCC judge found that Mazraani was an employee. In his ruling, he criticized IA’s witnesses for using imprecise language, and “wrote scathingly about insurance companies in general.” The judge also ordered IA, even though it was an intervener, to pay the costs of the Tax Court proceedings.

IA appealed this decision to the Federal Court of Appeal, which ordered a new hearing before another TCC judge. After that ruling was appealed to the SCC, the high court upheld the appeal court’s order.

“In Canada, the right to speak in the official language of one’s choice in certain courts is a fundamental and substantive right that is recognized in both constitutional and quasi‑constitutional laws,” noted the SCC ruling.

After the SCC ruling’s release, Jordan Stone, an associate at Weir Foulds in Toronto, tweeted: “This case underlies the importance of ensuring the language rights of witnesses in discipline hearings are respected. While this decision focuses on ‘courts,’ regulators should pay careful attention to the [SCC’s] comments.”

Melissa Shin

Melissa is the editorial director of Advisor.ca and leads Newcom Media Inc.’s group of financial publications. She has been with the team since 2011 and been recognized by PMAC and CFA Society Toronto for her reporting. Reach her at mshin@newcom.ca. You may also call or text 416-847-8038 to provide a confidential tip.