Want to Read It? Pay to Translate It.
Ongoing litigation regarding the Estate of Jiasen Liu presented an interesting challenge for the Honourable Justice M.J. Lema, who was hearing from the parties in Chambers on various interlocutory motions in Liu Estate (Re), 2021 ABQB 963 and 2021 ABQB 999. The Applicant gave undertakings at questioning and complied with some of them by providing documents in Chinese. At least one exhibit to one affidavit the Applicant filed was also in Chinese. The Respondents wanted the Applicant to pay for all the documents’ translation.
The Applicant was a Chinese national and appeared to travel to China regularly before the pandemic began. The Respondents were involved with individuals who were fluent in at least one Chinese language, including a witness who had provided informal translations and at least one professional translation service. Due to the nature of the Chambers hearing, the Court had a limited amount of evidence available.
The Court found conflicting caselaw from both within and outside of Alberta. The Court of Queen’s Bench of Alberta in Jasper Millwork Ltd. v Borden Co (1996), 194 AR 239, 1996 CanLII 10558 (AB QB) (Jasper) said the party wishing to read a document in discovery should pay to translate it. The Court of Appeal of Alberta (ABCA) distinguished Jasper in Attila Dogan Construction and Installation Co. Inc. v AMEC Americas Limited, 2012 ABCA 379 (Attila), while affirming a lower decision requiring a receiving party to initially pay for translation. However, the ABCA applied Attila to state a party adducing evidence should pay for its translation “or accept the risk of not doing so” in Nafie v Badawy, 2015 ABCA 36.
The Court chose a middle ground in its decision. It found the Respondents would have to pay for translation of the undertakings to the extent they wanted to rely on the documents, “at least initially”. The Court left open the possibility of the Respondents recovering the expense by way of costs at the end of the main action. However, for any documents the Applicant wanted to submit as evidence to the Court, including any Chinese-language exhibits to affidavits she had already filed, the Court required the Applicant to pay for their translation.
