Lost in translation: Fairness for interpreter

B. C. Supreme Court upholds lower court ruling that disqualified a man from interpreting in Small Claims Court case because he wasn’t on list

Provincial Court Judge Jane McKinnon didn’t owe a translator either fairness or natural justice when she refused to let him interpret in a small claims case, the B. C. Supreme Court says.

In a remarkable decision, Justice Miriam Gropper defended her lower court colleague in a novel action that had attacked the judge’s integrity and sought special costs against her.

But, at time when the provincial bench is demanding salary increases and docket backlogs are a major issue, this case also shows how expensive court time and resources are squandered on minor, easily resolved concerns.

Interpreter Sarb Sandhu argued McKinnon exceeded her jurisdiction, breached her duty of fairness and appeared biased during a hearing in Richmond on May 16, 2011.

Gropper explained that the trial began at 9: 41 a. m. but McKinnon said she needed to speak to the clerk outside of court.

Proceedings were adjourned until 10: 27.

At that time, McKinnon said she had been trying to determine whether Sidhu was a “court- certified interpreter.”

“You are not on the list,” she told him. “You cannot act as an interpreter in this matter.”

Confused, he tried to say she was mistaken.

But McKinnon replied “the courts of the province maintain a list of court- certified interpreters. People in the registry have been trying to assist by trying to ascertain if Mr. Sandhu is on the list and he is not.”

The judge ignored his protestations.

“She adjourned the matter until 1: 30 p. m. to provide Mr. Sandhu an opportunity to ‘ come up with the necessary material to indicate that he should be on the list but through some sort of administrative error he is not on it,’ ” Gropper said.

Sandhu returned with one of the city’s most respected lawyers, Ravi Hira, who told McKinnon there was no such thing as a “court certified list of interpreters.”

Hira explained the registry had a list of interpreters on contract with the attorney- general’s ministry to interpret in criminal cases, who can be called and who are paid by the government.

“Mr. Sandhu has been on that list for some time,” Hira continued. “Unfortunately there is a dispute between him and the attorney- general so he is not on the list.”

The lawyer said that Sandhu was entitled to and had been retained to interpret in civil matters in Supreme Court, on discoveries, and in Small Claims Court.

“This can’t proceed in this way,” McKinnon said. “Mr. Sandhu has no standing, he is merely, as far as I understand … it, a person who is retained by one of the parties in this civil litigation to assist …”

Hira urged McKinnon to conduct a voir dire — a trial within a trial — to establish Sandhu’s competence.

She declined: “I can’t possibly determine if Mr. Sandhu is competent or not. It is not for me to do that.”

Yet McKinnon said that she had no difficulty with the quality of the translator’s work. She adjourned the trial.

Upset, Sandhu filed for a judicial review.

Gropper explained that the expression “court- certified interpreters” was wrong but is nevertheless used in the Provincial Court Small Claims Handbook, a looseleaf set of crib- notes for lawyers published by the Continuing Legal Education Society.

She said the Provincial Court judges “widely” rely on it.

That judges earning $ 231,000 a year don’t know the law or the rules of court and are relying on such a guidebook is astounding.

“The Provincial Court does not certify interpreters,” Gropper acknowledged, and Hira was correct.

Nevertheless, she gave her Provincial Court sister a pass: “I find that Mr. Sandhu does not have standing to bring this petition. He was not a party to the small claims action.”

There is nothing in the Small Claims Act or rules, Gropper added, that require a judge to conduct a voir dire or assess an interpreter’s qualifications.

That’s true, however, Provincial Court judges are imbued with broad decision- making powers so they can deal with the vagaries of individual cases “in a just, speedy, inexpensive and simple manner.”

These are minor disputes involving less than $ 25,000.

To say, as Gropper did, that McKinnon “did not owe Mr. Sandhu a duty of fairness” was rubbing salt in his wound.

It isn’t a judge’s job to be fair? Come on.

Sandhu deserved at least a moral rhetorical victory from Gropper even if she wasn’t going to give him a dime.

Whether he was a litigant or not, given the circumstances, he should have been heard and McKinnon owed him a duty of fairness if only to be civil — as in “civil court.”

No one should have to put that in a handbook or a statute, and Gropper should have said that. She also should have added that judges shouldn’t rely on unofficial guides.

Let’s face it: A five- minute examination of Sandhu’s credentials could have resolved this dispute — either he was qualified or not.

The decision is available on the court website: http:// www. courts. gov. bc. ca/ jdbtxt/ SC/ 12/ 10/ 2012BCSC1064. htm.