Failure To Use Certified Translation May Not Be Fatal to Case
Under the Courts of Justice Act, any foreign language document that is admitted into evidence in a court proceeding must be accompanied by an affidavit by the translator certifying that it is an accurate translation. A recent Small Claims Court appeal decision illustrates that failure to use a certified translation may not be fatal to the case.*
The case involved a female tenant who had made a series of loans to her male landlord. Almost immediately after meeting him, the renter advanced $11,000 to the landlord so that he could travel to Iran to visit his sick father. According to the testimony, they agreed that the monies owed would be reduced by $600/month, the amount she would otherwise pay for renting a room in his house.
Over the next several months further advances were made until he owed her close to $25,000. Eventually, the relationship between the two deteriorated and he called the police to have her evicted. According to his testimony, he told the police she was a tenant and they evicted her. She testified that he told the police that she was a guest who refused to leave. When she told the police she was a tenant, they left. She move out the same day. When repayment of the loans did not occur, the renter sued. Not surprisingly, since the monies had been paid in cash, the landlord denied that he had received the funds.
Among the evidence adduced in the Small Claims Court trial, were two Farsi language texts which the renter had translated herself. The first text included the landlord's bank account and bank branch transit number which informed the renter where she should advance money to pay a certain utility bill for the landlord. The second text mentioned the repayment of the monies owed and included a reply of "okay" from the landlord. The judge admitted both texts into evidence. The judge ruled that the monies had been advanced by the renter. In response, the unsuccessful landlord appealed asserting, among other grounds that the admission of the two texts without proper translation was an error.
Divisional Court agreed with the landlord that the two text messages had been improperly admitted. That admission was not determinative of the matter, however. For a lower court decision to be set aside, the error made by the judge must have been "palpable and overriding". In other words, if the error was relatively harmless, the decision will stand despite the error.
In this case, Divisional Court noted, the error was relatively harmless. Even though the two texts were admitted, the judge gave them very little weight. Rather, the judge saw the case as a case of "he said/she said". The parties had different versions of whether the money was advanced or not. One was telling the truth, the other was telling falsehoods.
The judge relied heavily on the testimony concerning the police involvement in deciding who was truthful. He reasoned that if the police had been told that the renter was a tenant, they would not have become involved since eviction of a tenant cannot occur without a order from the Landlord Tenant Board. The fact that the landlord was willing to lie about this incident damaged his credibility in the eyes of the judge.
Since the judge's decision was based on something other than the improperly admitted translations, the decision was upheld.
* The Lesson: Although in this case, the improperly admitted translation was not fatal to the renter's case, we strongly recommend that you follow the Courts of Justice Act and accompany any translation with the appropriate affidavit and certification. Failure to do so could result in the translation not being admitted or, if admitted and relied upon, could allow an appeal to succeed.
The Second Lesson: A great deal of time and trouble could have been avoided, if the renter had simply written a note stating she was advancing money and what the terms of repayment would be and then obtained the landlord's signature before giving him the money. Anyone who would object to signing such a document should not be trusted with the money.
Igder v Heydarzard 2016 ONSC 3478 http://www.canlii.org/en/on/onscdc/doc/2016/2016onsc3478/2016onsc3478.pdf
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