Canada (Canadian Human Rights Commission) v. Winnicki, 2006 FC 350

Date: 20060316

Docket: T-1309-05

Citation: 2006 FC 350

Ottawa, Ontario, March 16, 2006

PRESENT:      The Honourable Mr. Justice Harrington

BETWEEN:

CANADIAN HUMAN RIGHTS COMMISSION

Applicant

and

TOMASZ WINNICKI

Respondent

REASONS FOR ORDER AND ORDER

(Delivered from the Bench at Ottawa, Ontario)

[1]                These written reasons and order were delivered orally in substantially similar form from the Bench this day.

[2]                Contempt of Court flows from our sense of the rule of law. No one is above the law, and no one is to flaunt Court orders. Public policy requires that Court orders be respected until such time as they are successfully appealed, stayed or set aside. In this case, Mr. Justice de Montigny granted an interlocutory injunction restraining the respondent, Tomasz Winnicki, from communicating, by

means of the Internet, messages that are likely to expose persons to hatred or contempt by reason of race, national or ethnic origin, colour or religion, contrary to subsection 13(1) of the Canadian Human Rights Act.

[3]                The Canadian Human Rights Commission has now moved on short notice for a Show Cause Order pursuant to Federal Courts Rule 467. It seeks an order requiring Mr. Winnicki to appear at a stipulated time and place to answer allegations that he is in contempt of the said order of Mr. Justice de Montigny. If the Show Cause Order is issued, he is entitled to present any defence that he may have.

[4]                One of the underlying precepts of our court system is, as expressed in Latin, audi alteram partem. A party normally has the right to be heard. In Cooper v. The Wandsworth Board of Works (1863), 143 E.R. 414 at page 420, Mr. Justice Byles quoted The King v. The Chancellor of Cambridge (1723) 1 Stra. 557. In that case, Mr. Justice Fortescue said:

"...The objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence..."

[5]                Our rules of Court do allow some matters to proceed ex parte, that is to say without notice to the opposing party. Rule 467(2) specifically provides that a motion for a Show Cause Order "...may be made ex parte" [emphasis added].

[6]                Before dealing with the merits of the motion, which would be limited to whether or not a prima facie case has been made out that Mr. Winnicki is in contempt of this Court, I expressed concern with the hearing proceeding on an ex parte basis.

[7]                On behalf of the Commission, Mr. Whitehall raised two points. He suggested that since Rule 467 contemplates that an applicant may seek a Show Cause Order ex parte, if the applicant chooses to do so, then whatever discretion the Court otherwise might have had is exhausted. His second point was that if the decision of the Commission to proceed ex parte does not exhaust the Court's discretion to order that the motion be heard upon notice, then the circumstances are such that the Court should exercise its discretion by hearing the motion ex parte.

[8]                Any ex parte order can be set aside. One example in the context of contempt of Court proceedings is Canadian Union of Postal Workers v. Canada Post Corp., [1987] 3 F.C. 654. This is not a case which cries for an ex parte application in that otherwise a Respondent might destroy evidence. Interim injunctions and Anton Pillar orders comes to mind. Courts may or may not agree to hear such applications on an ex parte basis.

[9]                I compare Rule 467 with Rule 458, the latter dealing with Charging Orders. That rule provides that the motion must be ex parte, which supports my view that the decision of the Commission to proceed ex parte under Rule 467 did not exhaust the Court's discretion.

[10]            Considering the importance of the law of contempt, in the exercise of my discretion I see no reason why Mr. Winnicki should be denied the opportunity of making representations, should he see fit, that the record does not establish a prima facie case of contempt against him. The scope of that defence is limited because of the two stage process involved. The issuance of a Show Cause Order does not reflect a finding that he is in contempt of Court. Should a Show Cause Order be issued, then the rules provide his right to a full hearing, and that a finding of contempt must be based on proof beyond a reasonable doubt.

ORDER

            The motion is adjourned sine die. It may be made representable in Ottawa upon proof of service of notice on Mr. Winnicki.

"Sean Harrington"

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           T-1309-05

STYLE OF CAUSE:                           CANADIAN HUMAN RIGHTS COMMISSION v. TOMASZ WINNICKI

PLACE OF HEARING:                     OTTAWA, ONTARIO

DATE OF HEARING:                       MARCH 16, 2006

REASONS FOR ORDER:               

AND ORDER:                                    HARRINGTON J.

DATED:                                              MARCH 16, 2006

APPEARANCES:

SOLICITORS OF RECORD:

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