AVOIDING THE BROKEN TELEPHONE: Interpreters and Translators in Personal Injury Litigation

Transcription

1 AVOIDING THE BROKEN TELEPHONE: Interpreters and Translators in Personal Injury Litigation Prepared by: Michael Gianacopoulos and Joanne Anderton, Articled Student, both of Farris, Vaughan, Wills & Murphy LLP, Vancouver, B.C.

2 I. INTRODUCTION Suffering a personal injury in British Columbia may be only the beginning of bad luck for a non-englishspeaking foreign traveller. A second bout of misfortune may be encountered when the injured traveller pursues his or her personal injury claim in a foreign country, with a foreign legal system and in a foreign language. If interpreters and translators are required, this unlucky tourist could be at a distinct disadvantage when it comes to a critically important aspect of personal injury litigation: the ability to fully and accurately describe how an accident has affected and will affect all aspects of the injured party s life. Interpreters and translators may be needed at all stages of the personal injury claim, including: (1) Initial client/counsel contact; (2) Subsequent client meetings (whether telephonic, written or in-person); (3) Examination for discovery; and (4) Trial. The uncertainty of personal injury litigation is complicated and made more challenging by the use of interpreters and translators. Much like the children s game of telephone, in which each player secretly whispers to the next person a phrase, often resulting in great difference between the original phrase and what the last player reports, ineffective use of interpreters and translators may result in the court mishearing the injured party s thoughts and experiences. However, the effective use of qualified professionals will assist counsel in working through the language barrier and avoiding the effects of the broken telephone. Otherwise, the foreign personal injury litigant risks losing the opportunity to obtain a fair settlement or court award and becoming a victim a second time in the courtroom. Additional issues and considerations arise in regards to interpreters and translators, such as: when to use them, how to find them, costs and how such services can be claimed as disbursements. These and other matters will be discussed below. II. INTERPRETERS AND TRANSLATORS IN CIVIL LITIGATION A. Interpreters versus Translators While the terms interpreter and translator are sometimes used interchangeably, interpreters and translators play different roles in restating a message from one language into another. The Supreme Court made the following distinction in R. v. Tran, (1994) 2 S.C.R. 951:...it may be helpful to note the conceptual distinction that exists between interpretation, which is primarily concerned with the spoken word, and translation, which is primarily concerned with the written word. [...] B. When is an Interpreter or Translator Necessary? When representing the unlucky tourist, an early consideration for counsel is whether or not an interpreter or translator is necessary. The plaintiff may experience noticeable difficulty speaking or comprehending English and the need for an interpreter may be clear. However, even if the plaintiff appears somewhat proficient in 2

3 English, his or her level of skill may not be compatible with the demands of civil litigation. For example, the court observed in R. v. Petrovic (1984), 47 O.R. (2d) 97 (although in the context of a criminal proceeding) that: A person may be able to communicate in a language for general purposes while not possessing sufficient comprehension or fluency to face a trial with its ominous consequences without the assistance of a qualified interpreter. If it appears that the plaintiff has difficulty communicating in the English language, counsel must consider whether or not to engage professional interpreters and translators. Even outside of the courtroom, it may not be prudent to rely on a plaintiff s friends or relatives to act in these capacities, particularly for important interviews, discoveries, or key documents. In his paper, Natural Justice in a Multicultural Environment: How Do You Ensure That Your Client Hears and is Heard? 1, Kurt Neuenfeldt suggests that before attempting use of a friend or relative as an interpreter, counsel should consider the following: (1) the friend or relative s level of skill; (2) the presence of an agenda or ulterior motive; (3) the client may not feel that he or she can be candid or criticize the interpretation; or (4) the friend or relative may be reluctant to provide an accurate interpretation of the client s words if that person is embarrassed, surprised or confused by what the client has to say. Further, while the ability of counsel to converse in the plaintiff s language of origin may be a useful and convenient skill, it is not without its pitfalls and counsel should consider engaging a professional interpreter for important interviews and particularly for discoveries. For example, Mr. Neuenfeldt cautions against acting as both counsel and interpreter, as there is the risk of becoming an adverse witness should the plaintiff repudiate an interpretation. Counsel should also consider the effect of Rule 51(6) ( Interpretation to deponent who does not understand English ) of the British Columbia Supreme Court Rules, B.C. Reg. 221/90 when determining whether a professional interpreter is needed. That Rule provides: Where it appears to a person before whom an affidavit is to be made that the deponent does not understand the English language, the affidavit shall be interpreted to the deponent by a competent interpreter who shall certify by endorsement in Form 60 on the affidavit that he or she has interpreted the affidavit to the deponent. If counsel deems that an interpreter is necessary, the wording of the Rule suggests that a professional interpreter s services should be engaged (rather than those of a friend or relative) in order to satisfy the requirements of a competent interpreter and to complete the endorsement in Form Kurt A. Neuenfeldt, Natural Justice in a Multicultural Environment: How Do You Ensure That Your Client Hears and is Heard? (2002), prepared for the Continuing Legal Education Society of British Columbia. 2 See also Rule 38 ( Depositions ), subsection (6) ( Where a person is willing to testify ) which provides that if the person to be examined is willing to testify, instructions to the examiner are to be in Form 32. This form stipulates that the witness and any interpreter are to be sworn or affirmed in accordance with the form set out therein, and includes the form of the Interpreter s Oath to be used. 3

4 Finally, the services of a translator may be needed throughout the process of personal injury litigation to translate foreign language affidavits, 3 medical records and other correspondence. C. The Role of Interpreters and Translators Both interpreters and translators act as conduits between the witness and the party or parties receiving information; interpreters convey the content of oral messages produced in the source language into another language and translators transpose written text from one language into another. However, interpreters and translators are restricted to the role of the conduit and are not to perform functions that lie outside of these services. They are not to advocate, counsel or improperly disclose information. 4 Court interpreters are to: faithfully and accurately reproduce the speaker s message in the closest natural equivalent of the listener s language, primarily in terms of meaning, and secondarily in terms of style, without embellishment, omission, explanation or expression of opinion. They are not, however, permitted to give advice, explain the proceedings, appear to be biased or express favouritism. 5 In sum, interpreters and translators are not to place their loyalty with any party or person. Rather, that loyalty must lie with the source language. 6 D. The Right to Use of an Interpreter Section 14 of the Canadian Charter of Rights and Freedoms (the Charter ) provides that: A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter. Although the Supreme Court in R. v. Tran, supra restricted the application of its discussion of the right to an interpreter under s.14 of the Charter to the right of an accused in a criminal proceeding and left open the application of that discussion to civil proceedings, the court did generally set out the scope and nature of this right. The court observed that while the right to an interpreter is not an automatic or absolute one (as the See for example, Fredrick M. Irvine, ed., McLachlin & Taylor British Columbia Court Forms, 2d ed., vol.1, looseleaf (Markham: LexisNexis, 2005) at Form 3F32, which sets out a recommended form to be sworn by a translator if translating a foreign language affidavit into English for use in court. In this recommended form, the translator attests that he or she is competent to translate the original foreign language affidavit (referred to therein as Exhibit A ) into English (where the translated document is referred to therein as Exhibit B ). See The Code of Ethics of The Society of Translators and Interpreters of British Columbia online: < See the Court Interpreters Code of Professional Conduct, Court Services Branch, Ministry of the Attorney General of British Columbia, Canada. Interview of Ted Hobrough, of The Language Bureau by Michael Gianacopoulos and Joanne Anderton (30 May 2008). 4

5 claimant must satisfy an entitlement to that right), the courts should be generous and open-minded when assessing an accused s need for an interpreter. As a general rule, the court held that an interpreter should be appointed if: (5) it becomes apparent to the judge that an accused is, for language reasons, having difficulty expressing him- or herself or understanding the proceedings and that the assistance of an interpreter would be helpful; or (6) an accused (or counsel for the accused) requests the services of an interpreter and the judge is of the opinion that the request is justified. Finally, the court noted the sensitivity required when assessing the need for an interpreter and that the courts should not be too quick to draw adverse inferences where the claimant of the right has some facility with the language used in the court [emphasis in the original]. While the scope of the right to an interpreter in criminal proceedings is broadly interpreted, in regards to civil litigation, it would appear that that this right is somewhat more circumscribed. Namely, the claim to an interpreter is subject to the discretion of the court and opposing counsel may challenge this claim. In their text The Law of Evidence in Canada, 7 Sopinka J. et al noted that generally speaking, in civil cases, the trial judge has a discretion to decide whether or not the proceedings must be interpreted. The authors further observe that: The primary consideration for the trial judge should be that a witness, especially a party, should be permitted to put before the court his or her evidence as fully and accurately and as fairly and effectively as all the circumstances permit. [...] Recognizing the great advantage enjoyed by a witness who does not actually require an interpreter and the difficulty experienced by the cross-examiner working through an interpreter, a trial judge must accommodate the calling party s interest in having the evidence of the witness before the court without causing undue prejudice to the adverse party. 8 Finally, John A. Olah, in his text The Art and Science of Advocacy, 9 frames the test for whether or not a judge should permit the use of an interpreter in the following terms: The test as to whether an interpreter should be made available to a witness is this: does the witness possess sufficient knowledge of the language to understand and to answer properly the questions put to him? In other words, is there a necessity for interpretation? The decision to permit the use of a translator is in the discretion of the trial judge John Sopinka, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999) at 905. Ibid at 906. John A. Olah, The Art and Science of Advocacy, vol. 1, looseleaf (Scarborough: Thomson Carswell, 2007) at para

6 Based on the foregoing, it would appear that the ability to use an interpreter is not an absolute right for the foreign personal injury litigant. However, if plaintiff s counsel can reasonably demonstrate the legitimate need for an interpreter, the use of one will likely be permitted. E. The Obligation to Produce an Interpreter It appears to be accepted practice in civil litigation, that the onus to produce or provide an interpreter lies with the examining party who wishes to examine an individual who is in need of an interpreter. 10 Armand A. Petronio, writing for The Advocate, 11 notes that: In civil proceedings a party wishing to examine a witness who cannot properly explain himself in English has the responsibility for arranging and paying for an interpreter. The requirement applies not only to oral proceedings such as discoveries and trials but also affidavits where there is a specific requirement for an endorsement under Rule 51. While the Supreme Court Rules, supra are silent on this particular point, the Federal Court Rules, S.O.R./ provide that the examining party bears the onus to arrange the attendance and pay the fees and disbursements of an interpreter where the person to be examined understands neither official language or is deaf or mute (see Rules 93(1) and 283). III. SELECTION OF INTERPRETERS AND TRANSLATORS A. Qualifications The Supreme Court also set out the standard of interpretation in R. v. Tran, supra (albeit in the context of a criminal proceeding) as:...one of continuity, precision, impartiality, competency and contemporaneousness. Given the underlying importance of the interests being protected by the right to interpreter assistance, the constitutionally guaranteed standard of interpretation must be high and allowable departures from that standard limited. [...] [emphasis added] However, while the standard of interpretation is high, it need not be one of perfection. For example: [...] In light of the fact that interpretation involves a process of mediation between two people which must occur on the spot with little opportunity for reflection, it follows that the standard for interpretation will tend to be lower than it might be for translation, where the source is a written text, where reaction time is usually greater and where conceptual See however, the decision of Master Donaldson in Ilyas v. Luu and Genesius (31 October 2007), Vancouver M (B.C.S.C), where it was decided that the plaintiff would attend discovery and provide at her expense (in any event of the cause), a court-certified Assyrian interpreter. Failing that, the plaintiff would attend the continuation of her examination for discovery and give her evidence through an Arabic interpreter provided by the defendants. It was noted that there was some difficulty in locating a qualified Assyrian interpreter, and that even if one was to be located, the cost was a cause for concern. Armand A. Petronio, Practice Note: Court Interpreters Legal and Policy Developments on Competence (1993) 51 The Advocate 77 at 78. 6

7 differences which sometimes exist between languages can be more fully accommodated and accounted for. Although the standard of interpretation enunciated in R. v. Tran, supra may apply more properly to proceedings in the criminal, rather than civil, context, the Supreme Court s discussion of that standard is helpful in providing guidance as to the selection of interpreters and the scope of their qualifications. In British Columbia, interpreters and translators may, by their experience, qualifications and training, become recognized as either certified or accredited. Only individuals certified by The Society of Translators and Interpreters of British Columbia ( STIBC ) may use the titles Certified Translator, Certified Court Interpreter or Certified Terminologist. 12 In order to become certified, individuals must pass written and practical examinations administered by the organization. Once certified, members of STIBC must abide by the organization s Code of Ethics, supra and are also covered by STIBC s liability insurance. In addition, the Court Services branch of the Ministry of Attorney General recognizes a wider pool of accredited interpreters (who are retained in family, criminal, traffic and municipal bylaw proceedings). Interpreters are considered accredited if they meet one of the following criteria: (1) Graduated from the Vancouver Community College Court Interpreting Certificate Program (2) Certified by STIBC or an organization affiliated with Canadian Translators and Interpreters Council While engaging an individual who is certified or accredited provides some comfort in regards to the anticipated quality of service (and may also more readily satisfy a court as to the qualifications of the desired interpreter or translator), certified or accredited individuals are not available in every language. However, otherwise-qualified individuals may be able to provide the necessary assistance to the client and may be found acceptable for use by the courts, provided their competence and independence can be demonstrated. B. Finding Interpreters and Translators If seeking a certified interpreter or translator, STIBC maintains a directory of its certified members and their working languages. This directory can be located online at: If the organization does not have in its membership a certified individual in the language sought, it is possible to contact the office for assistance ( If the STIBC directory does not yield a suitable interpreter or translator, there are additional sources through which certified, accredited, or otherwise-qualified individuals may be sought. For example, the BC Lawyers Directory (published by the British Columbia Branch of The Canadian Bar Association) includes individual service providers as well as agencies. For ease of convenience, rather than sourcing individual interpreters and translators, it may be useful to consult an agency. A reputable agency will be able to assist in locating a qualified individual with expertise in the desired foreign language, provide references and advice and may be able to locate the right fit for the client or case. Three larger agencies located in the Lower Mainland are: 12 In regards to these titles, STIBC has received occupational title protection from the province. (See STIBC s website: < 7

8 (1) The Language Bureau Telephone: (2) BC Professional Legal Interpreters Telephone: (3) A&T Interpreters and Translators Telephone: In addition, MOSAIC, the multilingual non-profit organization, provides interpretation and translation services through MOSAIC Language Services. For interpretation services, contact and for translation services, contact C. Selecting The Right Interpreter For The Client or Case When selecting an interpreter, a potential candidate should meet the general standard of interpretation enunciated in R. v. Tran, supra: continuous, precise, impartial, competent and contemporaneous. In addition, where there is the option to be selective, i.e. the plaintiff s language of origin is one spoken by a number of interpreters, counsel should consider whether that candidate is the right choice. For example, while an interpreter may competently speak and interpret a particular language, a client may be reluctant to speak to someone from a different country or region, or of a different cultural or religious background. Such cultural differences between a potential interpreter and the client may hinder the client s ability to speak frankly with the interpreter or comfortably convey his or her emotions and feelings. Cultural values are also an important consideration. For example, a female client may feel uncomfortable being alone with both a male lawyer and a male interpreter. Another consideration may be how the interaction between the client and a potential interpreter will be perceived by a judge or a judge and jury. For example, if the plaintiff is a younger female, should the choice of interpreter reflect the appearance or other characteristics of this plaintiff? If the plaintiff is a strong witness, is there any benefit to be gained by having the interpreter mirror the client? However, while this may be a consideration, it must be admitted that counsel may not always have the ability to be quite this selective there may be a limited number of qualified interpreters who speak the client s language. Finally, in selecting an interpreter, it is useful to interview the potential candidate, and review his or her qualifications. In addition, it may be prudent to have the client briefly meet the candidate to ensure that communication is possible and that a workable relationship can be formed, particularly if using the interpreter on an on-going basis throughout the litigation process. D. Terms of Engagement of Interpreters and Translators For civil litigation matters, counsel can expect charges of approximately $70 75/hour for the services of a certified or accredited interpreter. However, rates may vary depending on the experience and qualifications of the interpreter or the precise nature and scope of the interpretation services performed. Many interpreters and agencies have minimum engagement periods (e.g. half or full days) and may charge the full rate for time spent travelling or waiting in court. Interpreters may also incur disbursements, such as travel, mileage and parking. It is also prudent to enquire as to the cancellation fees and terms, as charges may vary. Translation services generally range from $0.19 to $0.30/word for similarly qualified individuals. 8

9 If the services provided will occur over a significant period of time, or if a large amount of fees are expected to be incurred, consider negotiating with the agency or individual providing the services. It may also be useful to have a contract in place setting out the scope of services to be provided, fees and disbursements to be charged and the cancellation policy, if any. IV. EFFECTIVE USE OF INTERPRETERS AND TRANSLATORS A. Case-Specific Considerations Effectively overcoming the unique challenges presented by the non-english-speaking plaintiff depends on a variety of circumstances, not the least of which are: (1) whether counsel represents the plaintiff(s) or defendant(s); (2) whether the plaintiff is a good/credible witness; (3) the kinds of injuries involved in the case; and (4) the kinds of claims. Generally speaking, counsel for a credible plaintiff should be vigilant to minimize any loss in meaning or barriers in communication that may occur due to interpretation. Conversely, defence counsel should be prepared to challenge the use and qualifications of an interpreter and the quality of interpretation, particularly where the plaintiff s credibility is at issue, and where if the situation suggests the plaintiff may be using the interpreter to his or her advantage. The specific issues arising from use of an interpreter or translator and the responding strategies vary, depending on the stage of litigation. B. Pre-Litigation Before a claim can even be made, the plaintiff s counsel must get the facts. The plaintiff may choose to bring along a friend or family member to interpret during the initial meeting(s). However, if for the reasons discussed above, the decision is made to use a professional interpreter from the outset, or if a professional interpreter will be used later in the litigation process (such as, for discovery), it is useful to explain the role of the interpreter early on in the litigation process. For example, the client should understand that the interpreter is there to interpret and facilitate communication, but not to help the client or clarify his or her thoughts. If using a professional interpreter or a friend or family member to interpret, play close attention to nonverbal cues during the initial interview and subsequent meetings. In order to get the facts, counsel should also be aware of nuance and emotion that may not be adequately conveyed at this early stage. In the Law Society of British Columbia s Report of the Interpreters Working Group 13, some practices which are thought to encourage transparency and unbiased reporting during the interpretation process are discussed and may be helpful to keep in mind throughout the litigation process: 13 Baldwin Wong et al (Equity and Diversity Committee), Report to the Benchers: Report of the Interpreters Working Group The Law Society of British Columbia (14 July 2006), online: < at 9. 9

10 (1) Not using the same interpreter for preparation as for court so as to avoid the interpreter filling the gaps to get an answer that the lawyer wanted to hear. Some lawyers won t use the same interpreter for discovery as for trial for the same reason. (2) Lawyers and interpreters being aware of the obligation to disclose to the court when the interpreter at trial has a previous professional or personal relationship with one of the parties. (3) Making it clear in instances where the clients may understand some English, that interpreters still interpret all conversation C. Pre-Trial 1. Pre-Discovery Prior to discovery and throughout the litigation process, counsel may find that foreign language documentation must be translated into English, such as correspondence or medical reports, which will necessitate the use of translators. Conversely, correspondence, such as requests for information or communication with foreign doctors may require translation from English into a foreign language. In addition, affidavits may be sworn, and may require interpretation (see above, regarding Rule 51(6)). 2. Discovery With regards to discovery involving interpreters, Lyle G. Harris makes the following recommendations in Discovery Practice in British Columbia: 14 (1) In preparing for an interpreted examination, counsel should be aware that the discovery process will take longer than normal, ebb and flow may be interrupted, assessment of credibility may be made more difficult and nuance may be lost. (2) Counsel should be aware that if a witness understands enough English to take the gist of the question, the delay caused by interpretation gives the witness extra time to compose an answer. (3) Throughout the examination, speak as though there were no interpreter. (4) Keep questions short. If a long question is necessary, break up the question and allow interpretation to occur in parts. Counsel should be aware that if a question is imprecise, unclear or ambiguous, these problems will be magnified through interpretation. As such, counsel should be aware of these potential pitfalls, and plan and construct questions accordingly. (These same comments may be applied to cross-examination). 3. Post Discovery 14 Lyle G. Harris, Discovery Practice in British Columbia, 2d ed., looseleaf (Vancouver: The Continuing Legal Education Society of British Columbia, 2004) at para

11 As discussed above, in the normal course, defence counsel will utilize its own interpreter to discover the non- English-speaking plaintiff. As such, if there are any concerns about the quality of the interpretation during discovery, plaintiff s counsel should consider having another interpreter or translator audit the transcripts for accuracy. In addition, depending on the nature of the claim, the plaintiff may need to review the discovery transcripts, which will require their translation from English into the plaintiff s language of origin. 4. Privilege Both STIBC s Code of Ethics, supra and the Court Interpreters Code of Professional Conduct, supra recognize the notion of privilege and confidentiality: (1) Members shall not divulge privileged information. 15 (2) Court interpreters shall keep all assignment-related information confidential. They shall not publicly discuss, report on, or offer an opinion about any of their assignments, even when that information is not privileged information or required by law to be kept confidential. They shall not discuss any aspect of the case they are working on with parties, witnesses or jurors. 16 In addition, accredited interpreters and translators who have trained at Vancouver Community College are familiar with ethics and confidentiality as part of their studies. However, the Report of the Interpreters Working Group, supra notes that: There does not appear to be any consistency as to whether the court system or judges consider interpreters to be Officers of the Courts. The Working Group hear that some judges swear interpreters in as Officers of the Court while other judges don t. Due to this uncertainty, interpreters are not always sure if or to what extent they should uphold solicitor-client privilege. This issue is important as interpreters can play various roles in the court process... [...] As such, if there is any concern about confidentiality, counsel should consider having the interpreter or translator sign a Confidentiality Agreement. D. Trial 1. Examination in Chief 15 Supra note Supra note 5. 11

12 In her paper, Personal Injury for Legal Support Staff 2001 Update: Race, Gender and Ethnicity, 17 the Honourable Mobina S.B. Jaffer, Q.C. presents a number of suggestions for working with interpreters. Some of her suggestions which are specific to the courtroom setting are as follows: (1) Speak to the client in the first person. Do not turn to the interpreter and say, Tell him to show us his birth certificate. Address the client directly and say, Show me your birth certificate. The interpreter is supposed to interpret exactly what is said, so, if the lawyer says, Tell him to do it the interpreter will also say Tell him to do it. (2) Speak clearly. Speak up, speak distinctly, and speak slowly. If the interpreter can t hear it, he can t interpret it. (3) Pause frequently. If you speak too quickly the interpreter may fall behind you, and your client or witness may not be told everything that is being said in the hearing. (4) Speak in phrases or sentences short enough for the interpreter to be able to remember them verbatim, and, therefore, interpret them verbatim. (5) Interpreting verbatim means conveying each and every part of the message in the source language into its equivalent in the target language in a manner that makes sense in the target language. Therefore, while in English you would say I was caught between a rock and a hard place, in Spanish you would say I found myself between the sword and the wall. While in English we would say, Get out of my life, in Gujarati, one would say, Measure your way, walk a mile. (6) Wait until the interpreter has finished speaking before you ask another question. (7) Understand what an interpreter s job is. They are officers of the court. They answer to the Judge. If you want to give them instructions, address your request or instructions to the Judge. (8) At Examinations for Discovery and at Trial, I cannot stress too much how important it is to use qualified professional interpreters. Do not rely on friends and relatives. Someone who is not a professional interpreter does not have the necessary experience to do the job adequately. Just as we would frown upon non-lawyers giving legal advice, it is folly for lay people to act as interpreters. (9) Listen actively. If you ask a long question and you hear a long answer from the witness expect the interpreter to also take some time to interpret it. If not, you may want to make sure the interpreter has interpreted the whole answer. In his paper Natural Justice in a Multicultural Environment: How Do You Ensure That Your Client Hears and is Heard?, supra Kurt Neuenfeldt suggests that counsel should remain aware for cues that may suggest difficulty with the interpretation process, such as: (a) a disconnect between the time the client takes to make a statement and the time it takes the interpreter to restate the phrase in English; 17 Mobina S.B. Jaffer, Q.C., Personal Injury for Legal Support Staff 2001 Update: Race, Gender and Ethnicity (2001), prepared for the Continuing Legal Education Society of British Columbia. See the article for a full list of suggestions regarding working with interpreters. 12

13 (b) (c) apparent conversations between the interpreter and the witness. The interpreter may want to help the witness answer a question or try to make sense of an odd response; or puzzled looks and inappropriate responses. 2. Cross-Examination Even in the criminal context, where the right to an interpreter is given a broad and generous interpretation, this right may be challenged by opposing counsel: That does not mean that the right to an interpreter is an absolute right and that crossexamination as to the linguistic competence of the person who requested such assistance is automatically oppressive and vexatious to the point of making the exercise of that right illusory. 18 In addition, John A. Olah writes in his text The Art and Science of Advocacy, supra that: Your opponent has the right to question your witness in the English in order to test the witness s competence in the English language. In addition, if the foreign witness has given his evidence-in-chief with the assistance of an interpreter, your adversary is entitled to choose whether to cross-examine in English without the assistance of the interpreter or to invoke the assistance of an interpreter. This rule is a recognition of the advantage that an unscrupulous witness who understands English enjoys in cross-examination when he is permitted to use an interpreter. If the witness clearly lacks the necessary competence in the English language, he will not be forced to give his evidence in English. However, while opposing counsel maintains the right to object to the use of an interpreter, the Report of the Interpreters Working Group, supra observes that there is no formal process for conducting an audit of the accuracy of an interpretation. In deciding whether or not to allow a witness to testify with the aid of an interpreter, Sopinka et al. write in The Law of Evidence in Canada, supra that the judge must determine: whether the witness possesses sufficient knowledge of the language of the proceedings to really understand and answer the questions put to him or her. In arriving at this decision, judge is not bound to accept the statement of counsel producing the witness as to the linguistic ability of the witness, but may allow the examination to proceed to make and independent determination. The trial judge may also allow counsel opposing the use of an interpreter to question the witness in order to test the witness language skills. Also the trial judge may put questions to the witness directly. If however, the witness persists in stating his or her ignorance of the relevant language and apparently fails to understand the questions, the witness should be permitted to give the evidence in a language he or she understands Roy v. Hackett (1987), 62 O.R. (2d) 365. Supra note 7 at

14 If counsel determines that an objection should be made to the use of an interpreter, the qualifications of the interpreter, or the quality of the interpretation, the following suggestions may be useful: (1) If a case warrants it, take you own interpreter to ensure that the court interpreter is interpreting correctly; (2) If there are any concerns about the interpretation, consider sending the witnesses testimony for an audit; 20 and (3) If there are any concerns about the interpretation, voice those concerns as soon as possible. Object early and often to poor interpretation don t try to struggle through or make do. 21 Finally, John A. Olah offers the following advice in The Art and Science of Advocacy, supra: In the event your adversary has called the witness and an interpreter has been provided, ask the judge to instruct the interpreter that he is required to translate everything verbatim. Be vigilant. Sometimes it will become readily apparent that the interpreter is not complying with the court s direction. The witness may give a lengthy answer, but the translation may be very brief or there may be dialogue between the witness and the interpreter. You should register an objection in such cases. If you are dealing with a critical witness, consider having your interpreter in court to ensure that a verbatim translation is occurring. As we have already seen, if the court concludes that the interpreter is not fulfilling his function properly, the trial judge can replace him with another interpreter. 3. Judge Alone versus Judge & Jury If the use of an interpreter or the competence of an interpreter is to be challenged in a trial involving a jury, John A. Olah suggests the following procedure in The Art and Science of Advocacy, supra: Although there is no Canadian authority on this point, voir dire to test the competence of the interpreter probably should be conducted in the presence of the jury. Opposing counsel should be afforded an opportunity to examine the interpreter and to make submissions before the trial judge rules on the competence of the interpreter. [...] [...] If, however, the determination is that an interpreter is necessary, then the next step, if required by your opponent, is to conduct a voir dire as to the competence of the interpreter. This inquiry will be held in the presence of the jury. Now the trial judge will be required to rule on the competence of the interpreter See for example, Rahmaty, Parviz v. M.C.I. (F.C.T.D., no. IMM_ ), Jerome, May 13, 1996, where in proceedings before the Immigration and Refugee Board, concerns about the quality of interpretation were addressed by submitting a tape of the proceedings to another interpreter for a report. (However, the alleged errors, if any, did not affect the outcome of the case or the central issues before the Board). The first two suggestions are attributed to Ms. Jaffer, in her article Personal Injury for Legal Support Staff 2001 Update: Race, Gender and Ethnicity, supra and the final suggestion is attributed to Mr. Neuenfeldt, in his article Natural Justice in a Multicultural Environment: How Do You Ensure That Your Client Hears and is Heard?, supra. 14

15 V. SPECIAL ISSUES A. Is Interpreted Testimony Perceived Differently? Is interpreted testimony perceived differently by the courts? In addition to the challenges posed by the use of interpreters in personal injury litigation, use of an interpreter, particularly when one is not absolutely necessary, may have an impact on a court s assessment of credibility. See for example, the following British Columbia cases: (1) Dosanjh v. Logan, 1993 CanLII 2426 (BC S.C.): in finding that the plaintiff was not a credible witness, Cohen J. criticized the plaintiff s use of an interpreter when it was patently obvious that the plaintiff had a good grasp of English. Cohen J. was also critical of the fact that the plaintiff had used the interpreter to maximize his opportunity to give evasive, misleading and confusing answers to straight forward questions. (2) Hutchinson v. Yu-Hua-Chu, 1996 CanLII 1709 (BC C.A.): in rejecting the appellant s appeal, McEachern C.J., writing for the court, led with the following comments: This was a difficult appeal at the hearing stage because the appellant, a 72 year old, welleducated Chinese gentleman who teaches English, sought to argue his own appeal through an interpreter. However, he often lapsed into English, especially on important issues. Nevertheless, we think we understand the appellant s argument (3) Insurance Corporation of British Columbia v. Husseinian, 2008 BCSC 241: shortly before concluding that two of the defendants had staged a collision, the court referenced one defendant s use of an interpreter and his evasiveness (at paragraphs 87 and 88): When he was asked about the inconsistency, his answers were evasive. He said he did not understand the word total loss in the question posed to him at the examination for discovery. He stated at the trial that his car was perfect, which is not consistent with the evidence of the photographs taken of the vehicle following the accident which show old damage. Mr. Malek Sr. submits that the lawyer who conducted the examination for discovery took advantage of him because it was conducted without an interpreter. However, in the portions of the examination for discovery that ICBC has referred to Mr. Malek Sr. was asked questions in a simple manner and was able to answer them. He was given an opportunity at the trial to explain through an interpreter why his answers at the examination for discovery differed from his evidence at trial and his answers were, in my view, evasive. His evidence at the trial itself was inconsistent. [...] See also Insurance Corp. of British Columbia v. Phung, 2003 BCSC 1281 and S. 810(1) re Byung Ho Pyo, 2005 BCPC 96 (albeit in the criminal context). B. Claiming the Cost of an Interpreter or Translator Rule 57(4) of the Supreme Court Rules, supra provide that: In addition to determining the fees that are to be allowed on an assessment under subrule (1) or (3), the registrar must 15

16 (a) (b) Determine which expenses and disbursements have been necessarily or properly incurred in the conduct of the proceeding, and Allow a reasonable amount for those expenses and disbursements. The following case law suggests that reasonable disbursements related to interpretation and translation services may be validly claimed. For example: (1) Paul s Restaurant Ltd. v. Dunn, 1996 CanLII 580 (BC S.C.): in an assessment of costs of the respondent, who was hearing impaired, disbursements related to use sign language interpreters were allowed. Master Joyce, as Registrar, observed that: It may be that even without s.14 of the Charter a party who is deaf or who does not understand English and who employs the assistance of an interpreter in civil proceedings incurs a proper disbursement. But with the force of the Charter which gives a litigant who does not understand or speak the language in which the proceedings are conducted or who is deaf the fundamental right to have the assistance of an interpreter I think it is impossible to say that the cost of employing the interpreter is not a proper disbursement. Further, I consider that the Charter right is not limited to the assistance of an interpreter for the purpose of testifying in court. Section 14 of the Charter is not limited by its words to the assistance of an interpreter only for testifying and in my view it is broader than that. (2) Girocredit Bank Aktiengesellschaft Der Sparkassen v. Bader [1999] B.C.J. 182: the respondents claimed disbursements related to the translation of documents performed in Germany, where those services amounted to approximately $422/hour. Registrar Jordan held that, while translation of the documents was necessary, the rate was unreasonable and instead allowed only the rate of $0.24/word (the rate charged by B.C. Professional Legal Interpreters in 1997). The respondents also claimed the interpretation fees charged by their niece, at the rate of $45/hour (then the rate charged by B.C. Professional Legal Interpreters). Although the niece was not a courtcertified interpreter, these disbursements were allowed, and Registrar Jordan observed that had the respondents engaged the services of professional interpreters, the fees would have been much higher (due to rush jobs or travelling time). (3) Terekhov v. Elias et al, 2003 BCSC 956: after settlement of a personal injury claim, the plaintiff claimed disbursements related to the services of a Russian interpreter, at a rate of $50/hour (for a total of $800) and minor disbursements related to mileage and parking. Relying on Girocredit Bank, supra Master Groves approved these disbursements as properly incurred in the conduct of the proceeding pursuant to Rule 57(4)(a). In rejecting the defendant s argument that the plaintiff s counsel should bear the cost of interpretation services because he advertised for clients in a Russian language newspaper, Master Groves observed that:...it is noteworthy that we live in an increasingly multi-ethnic society. It is clearly not unusual that a lawyer would be approached by a client who has significant language difficulties. In some circumstances, it may be reasonable to expect a client to retain the services of a lawyer who speaks their language if there are a good number of lawyers available with that language skill. I note that in regards to the Russian language, the Canadian Bar Association, British Columbia Branch, legal directory for 2003 notes only 10 lawyers in the (604) area code who provide second-language services in Russian. Without getting into a detailed analysis of where these various counsel practice, or an analysis of the preferred area of practice of these various solicitors, it is not unreasonable, considering the limited number of solicitors who provide second language services in Russian, to conclude that this plaintiff should not have to seek out the services of a Russian-speaking lawyer. 16

17 VI. SUMMARY AND CONCLUSION In order to facilitate the unlucky tourist s communication with both counsel and the court, interpreters and translators may be needed at the outset and throughout the personal injury litigation process. While their use can pose unique challenges for plaintiff s counsel, the potentially damaging effects of the broken telephone can be mitigated or even avoided if counsel: (1) remains aware to the potential need for an interpreter or translator, particularly to communicate legal concepts or in the courtroom setting; (2) engages certified, accredited, or otherwise-qualified individuals whenever cost, availability and other practical considerations permit; and (3) ensures that the plaintiff s experiences are adequately conveyed, such that communication is facilitated through the interpreter but not hampered by differences in, for example, dialect or cultural values. Defending against a personal injury claim made by the unlucky tourist also requires counsel to adjust litigation strategy and techniques accordingly. For example, if appropriate, counsel may oppose the use of an interpreter or the qualifications of the proffered interpreter. If there are any concerns regarding the quality of the interpretation itself, those concerns should be voiced as early in the proceedings as possible. This may facilitated by having a defence interpreter sit in on the proceedings or by having the transcripts audited. Finally, in order to conduct effective discovery and cross-examination through an interpreter, counsel is welladvised to tailor the content and delivery of questions and to pay close attention to body language and nonverbal cues throughout. In conclusion, counsel practicing in the field of personal injury face unique challenges when presented with the non-english-speaking personal injury litigant. Interpreters and translators are important tools in meeting these challenges, and careful and effective use of qualified individuals throughout the litigation process can facilitate the pursuit of, and defence of personal injury claims. 17