Kulbashian v. Canada (Human Rights Commission), 2007 FC 354

 

 

 

Date: 20070402

Docket: T-572-06

Citation: 2007 FC 354

Ottawa, Ontario, April 2, 2007

PRESENT:     The Honourable Madam Justice Heneghan

 

BETWEEN:

ALEXAN KULBASHIAN and

JAMES SCOTT RICHARDSON

Applicants

and

 

CANADIAN HUMAN RIGHTS COMMISSION and

 ATTORNEY GENERAL OF CANADA and

RICHARD WARMAN

Respondents

 

REASONS FOR ORDER AND ORDER

 

I.  Introduction

[1]               By Notice of Application for Judicial Review filed on March 29, 2006, Alexan Kulbashian and James Scott Richardson (the “Applicants”) commenced this proceeding, seeking an order to quash a decision of the Canadian Human Rights Commission dated March 10, 2006. The Notice of Application named the Attorney General of Canada (“Attorney General”) and the Canadian Human Rights Commission (“Commission”) as Respondents. The Notice of Application described the relief sought by the Applicants as follows:

            1. Leave to make this application for judicial review;

 

The grounds for the application are:

 

(a)    That Sections 13(1)(2)(3) and 54(1), (1.1) of the Canadian Human Rights Act are a violation of subsections 2(a) and (b) and Section 7 of the Canadian Charter of Rights and Freedoms are not saved by Section 1 thereof, and such are of no force and effect pursuant to Sections 24(1) and 52(1) of the Constitution Act, 1982;

(b)   That Section 13 and 54(1), (1.1) of the Canadian Human Rights Act is a violation of Subsections 1(d) and (f) and Section 2 of the Canadian Bill of Rights and is thereby rendered inoperative;

(c)    The Tribunal acted beyond its jurisdiction or refused to exercise its jurisdiction;

(d)   The Tribunal failed to observe procedural fairness or other procedure that was required by law to observe;

(e)    The Tribunal erred in law in making a decision or order, whether or not the error appears on the face of the record;

(f)     That the order by the Tribunal was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.

(g)    The Tribunal acted, or failed to act, by reason of fraud or perjured evidence; or

(h)    The Tribunal acted in any other way that was contrary to law.

(i)      Such further and other grounds as counsel may advise upon reading the transcript.

 

[2]               The Applicants subsequently applied for leave to amend the original Notice of Application and leave to amend was granted by Order of Prothonotary Lafrenière dated May 19, 2006.

[3]               On May 23, 2006, the Applicants filed an Amended Notice of Application. The amendment related to the relief sought and the Amended Notice of Application seeks the following relief:

The applicant makes application for:

 

a.  Leave to make this application for judicial review;

b.  An order quashing the decision of the Canadian Human Rights Tribunal with costs and declaring section 13(1) of the Canadian Human Rights Act to be an unreasonable limit on rights of section 2(b) of the Charter of Rights and Freedoms not saved by section 1 thereof and no force and effect pursuant to section 52 of the Constitution Act of Canada RSC 1982 or alternatively declaring the application of section 13(1) of the Canadian Human Rights Act to the internet is a breach of section 2(b) and section 24(1) of the Charter of Rights and Freedoms as an appropriate remedy to declare the section inapplicable to this case;

c.  Adding the Attorney General to this application by consent.

 

[4]               The Respondent Attorney General now moves for an order striking out the Amended Notice of Application. In the alternative, the Attorney General seeks an order that the application be stayed pending the final disposition of proceedings before the Human Rights Tribunal in Richard Warman v. Mark Lemire, Tribunal File No. T1073/5405 (“Lemire”). In the further alternative, the Attorney General seeks an order that the application proceed as an action. In the further alternative, he seeks a 45-day extension of time from the date of the order in this matter, to file affidavit evidence in response to the application.

[5]               The Respondent Commission supports the Attorney General in this motion. If the motion is dismissed and the underlying application for judicial review proceeds, the Commission seeks a 45-

day extension of time from the date of the order to file affidavit evidence in response to the application.

II.  Background

[6]               The Respondent Richard Warman filed a complaint with the Commission, alleging that the Applicants had communicated messages over the internet that exposed individuals who were non-Christian, non-Caucasian or of “other” national ethnic origin, to hatred or contempt, contrary to section 13 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6. This complaint proceeded to a hearing before a tribunal constituted pursuant to the Act (the “Tribunal”), and that Tribunal issued a decision on the matter on March 10, 2006. In that decision, the tribunal held that the Applicants “were involved in various ways in the communication of ‘hate messages’, contrary to section 13 of the Act.” The Tribunal made the following Order:

Accordingly, I order Mr. Kulbashian and Mr. Richardson, as well as Affordable Space.com and the Canadian Ethnic Cleansing Team, to cease and desist from communicating or causing to be communicated, by the means described in s. 13 of the Act, namely the Internet, any matter of the type contained in the Hate Messages that is likely to expose a person or persons to hatred or contempt by reason of the fact that the person or persons are identifiable on the basis of a prohibited ground of discrimination.

[7]               Further, the Applicant Mr. Kulbashian was ordered to pay to the complainant Mr. Warman the sum of $5,000.00 with simple interest as special compensation and both Applicants were ordered to pay $1,000.00 in penalties to the Tribunal. The decision does not address the

constitutionality of subsection 13(1) of the Act nor does it indicate that this issue was raised during the hearing.

III.  Issues

[8]               The motion raises four issues:

1.                  Should the Amended Notice of Application be struck out in whole or in part?

2.                  In the alternative, should this Application be stayed pending the final disposition of proceedings before the tribunal in Lemire, including any application for judicial review of the decision to be given in that case?

3.                  In the further alternative, should this application be converted to an action?

4.                  In the still further alternative, should the Respondents be granted an extension of time to file affidavit evidence in response to the application?

IV.  Summary of Submissions

A.        Attorney General of Canada

[9]               The Respondent Attorney General recognizes, as a general principle, that the Federal Court has the jurisdiction to hear constitutional challenges to legislation, based on the Charter, in the context of judicial review proceedings. However, he submits that the Court should decline to hear the Applicants’ Charter arguments in this case and should strike out the application, since no Charter challenge was raised in the proceedings before the Tribunal. In this regard, the Attorney General relies on the decisions in Suchit v. Canada (Minister of Citizenship and Immigration), 2005 FC 800 and Chen v. Canada (Minister of Citizenship and Immigration) (2000), 197 F.T.R. 307. The Attorney General argues that this Court has recognized that it does not have jurisdiction in a judicial review application to entertain Charter arguments that were not previously raised before the administrative decision-maker whose decision is under review.

[10]           The Attorney General further argues that both precedent and principle support the proposition that this Court should not entertain a Charter challenge being raised for the first time where the administrative tribunal whose decision is under review had the jurisdiction to hear that Charter challenge in the first place. In this regard, he relies on the decisions in Waters v. British Columbia (Director of Employment Standards) (2004), 40 C.L.R. (3d) 84 (B.C.S.C.); Huerto v. College of Physicians and Surgeons of Saskatchewan (2005), 263 Sask. R. 214 (Q.B.) and R. v. Brown, [1993] 2 S.C.R. 918.

[11]           Further, the Respondent Attorney General argues that there are good policy reasons why this Court should not determine the constitutional validity of this legislation in this application for judicial review. He submits that there is likely to be insufficient evidence on the record upon which this Court could decide the constitutional challenge. As well, allowing parties to adduce evidence in respect of Charter issues, for the first time, in a judicial review application would essentially

transform the role of the Court from that of a reviewing court to that of a trial court. The Attorney General argues that this is not the traditional role of the Court in a judicial review proceeding.

[12]           Although the Attorney General recognizes that the Court has the jurisdiction to consider constitutional challenges, he argues that there was no evidence before the Tribunal relating to the alleged Charter violation or any potential justification about this violation pursuant to section 1 of the Charter. The Attorney General argues that the appropriate remedy is for the Court to decline to hear the Charter issues now being raised and to wait for the outcome in Lemire, where the parties will have the opportunity to submit evidence in respect of this issue.

[13]           In the alternative, the Attorney General argues that the present application should be stayed pending the final disposition in Lemire. Section 50 of the Federal Courts Act, R.S.C. 1985 c. F-7, as amended, confers jurisdiction upon this Court to enter a stay of proceedings, in its discretion, where the continuation of a proceeding will cause prejudice or injustice and where the stay would not be unjust to the plaintiff or applicant. The Attorney General further argues that the availability “of adequate alternate remedy” must also be considered. In this regard, the Attorney General relies upon the decision in Dene Tha’ Nation v. Canada (Minister of Environment) (2006), 21 C.E.L.R. (3d) 27.

[14]           Although he acknowledges that the Applicants are not parties in the Lemire case, the Attorney General suggests that the proceedings in Lemire constitute an adequate alternate remedy. He argues that the outcome in Lemire will directly impact the Applicants’ application for judicial review. Specifically, the Attorney General submits that, if the tribunal upholds the constitutionality of subsection 13(1) of the Act in Lemire, the present application can proceed with the benefit of the tribunal’s reasons in that other proceeding.

[15]           Further, the Attorney General argues that the Applicants will not suffer any prejudice or injustice if a stay is granted because they have requested declaratory relief only and have not asked the Court to reverse the Tribunal’s decision on its merits.

[16]           In the further alternative, the Attorney General submits that the present application should be treated and proceeded with as an action pursuant to section 18.4 of the Federal Courts Act. He acknowledges that the conversion of an application to an action is an exception under subsection 4(2) to the general rule set out in subsection 18.4(1) that applications be heard “without delay and in a summary way”. The conversion of an application to an action should be granted only in the clearest of circumstances where the facts cannot be satisfactorily established or waived through affidavit evidence. In this regard, the Attorney General relies upon the decision in Macinnis v. Canada (Attorney General), [1994] 2 F.C. 464 (Fed. C.A.).

[17]           The Commission supports the position of the Attorney General and seeks the same relief.

[18]           In the present case, the Attorney General argues that the proper presentation of the issue requires that there be opportunities for discovery of documents and the witnesses, and for the presentation of viva voce evidence at trial.

[19]           In the still further alternative, with respect to the last issue, the Attorney General requests an extension of time, pursuant to rule 8 of the Federal Courts Rules, SOR/98-106, (the “Rules”)  in order to serve and file affidavit evidence. In this regard, he seeks an extension of 45 days from the date of release of the order in this matter.

[20]           The Applicants filed brief written submissions in response to this motion. Their basic argument is that the application for judicial review should stand and in the alternative, that it be converted to an action to allow for the submission of evidence, together with the opportunity for discovery of witnesses.

[21]           The Applicants argue that their right to challenge the constitutionality of subsection 13(1) of the Act cannot be foreclosed by arguments about formalities. They suggest that the fact that they failed to raise the constitutionality arguments at issue at an earlier time before the Tribunal is merely a matter of form.

V.  Post-Hearing Submissions

[22]           Subsequent to the hearing, by letter dated December 7, 2006, the Applicants sought leave of the Court to further amend their Amended Notice of Application in this matter as follows:

Due to an oversight on my part it has become clear to me that the Amended Application had failed to include the original grounds for relief and had left only remaining the Constitutional relief seeking to challenge S. 13(1) of the Canadian Human Rights Act as a violation of S. 2(b) of the Charter.

 

…

 

My view is, that in view of the reserve Judgement it would be appropriate to ask if this matter could be reopened by way of a written Application to Amend the Application for Judicial Review such that if the Motion to Strike is successful the Amendment would simply reinstate that part of the grounds for relief which was originally in the Application in the first place.

[23]           By Direction issued on December 8, 2006, the Respondents were given the opportunity to reply to the Applicants’ request. Both the Attorney General and the Commission opposed the Applicants’ request to further amend their Notice of Application and argued that the motion to strike should be disposed of on the basis of the pleadings that were before the Court when the motion to strike was heard.

[24]           By a further letter dated December 11, 2006, the Applicants sought leave to withdraw Exhibit B to the Affidavit of Mr. Kulbashian filed in this matter on November 28, 2006. Again, the Respondents were given the opportunity to respond to this letter. By letters dated January 31, 2007 and February 2, 2007, both Respondents indicated that they had no objection to this request.

VI.  Discussion and Disposition

 

[25]           I will first address the post-hearing submissions.

[26]           The first matter to be addressed is the Applicants’ request, submitted after the hearing of this motion, to reinstate the original grounds of relief that were set out in their Original Notice of Application. This request was made in a letter dated December 7, 2006, from the Applicants’ counsel.

[27]           Counsel for both the Attorney General and the Commission objected to this request, on the basis that the motion had been argued on the grounds of the relief sought in the Amended Notice of Application.

[28]           The sole ground for this request by the Applicants is that they inadvertently failed to include the original grounds of relief in their Amended Notice of Application. Counsel characterized this as “an oversight on my part”.

[29]           I agree with the submissions of the Respondents that the Applicants should not be permitted to re-amend their Notice of Application at this stage. The original grounds of relief were deleted upon the motion of the Applicants. That motion gave rise to the Order of Prothonotary Lafrenière on May 19, 2006. If indeed these original grounds were omitted as the result of oversight or inadvertence, counsel for the Applicants were dilatory in addressing the matter. The delay between May 19 and December 7, 2006 is not insignificant.

[30]           The Applicants sought to amend their Notice of Application and having done so, must live with the consequences.

[31]           The second post-hearing request concerning the attachment to the affidavit of Mr. Kulbashian is not contested by the Respondents. However, I see no good reason to allow a party to withdraw an exhibit to an affidavit that he has sworn and filed. I decline to exercise my discretion to grant the relief sought.

[32]           Next, I will address the Respondents’ motion to strike out the Amended Notice of Application. Both Respondents also seek alternative relief, should the principal relief sought be dismissed.

[33]           Rule 221(1) of the Rules governs a motion to strike out pleadings and provides as follows:

[34]           The test upon a motion to strike out pleadings as set out in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, is whether it is plain and obvious that the claim discloses no reasonable cause of action.

[35]           In  Pharmacia Inc. v. Canada (Minister of National Health and Welfare), [1995] 1 F.C. 588 (Fed. C.A.), the Federal Court of Appeal said that parties cannot use a motion to strike out an originating motion, now a notice of application, except in exceptional cases.

[36]           In the present case, the basis for the Respondents’ motion to strike out the Amended Notice of Application is the fact that the Applicants purport to challenge the constitutionality of subsection 13(1) of the Act when they did not raise that issue before the initial decision-maker, that is the Tribunal, where that decision-maker possessed the jurisdiction to make a ruling upon a constitutional challenge. The Respondents argue that no evidence was submitted to the Tribunal relative to a constitutional issue and further, that the decision is silent in that regard.

[37]           I agree with the Respondents that the decisions in Waters and Brown apply to the present situation. In Brown, at page 923, Madam Justice L’Heureux-Dubé observed in a dissenting judgment that:

Courts have long frowned on the practice of raising new arguments on appeal. The concerns are twofold: first, prejudice to the other side caused by the lack of opportunity to respond and adduce evidence at trial and second the lack of a sufficient record upon which to make the findings of fact necessary to properly rule on the new issue: see Brown v. Dean, [1910] A.C. 373 (H.L.), and Perka v. The Queen, [1984] 2 S.C.R. 232.

[38]           As noted above, the test for striking out a notice of application for judicial review was discussed by the Federal Court of Appeal in Pharmacia . There the Court held that in order to strike an application for judicial review, the application would have to be “so clearly improper as to be bereft of any possibility of success”.

[39]           This is a high test. In the present case, the Applicants would need to obtain leave from the presiding judge in order to introduce the necessary evidence to support their claims. I am not prepared to anticipate how the presiding judge would dispose of any motion in this regard. In these circumstances, I am not prepared to strike out the application.

[40]           As alternative relief, the moving parties request that this proceeding be stayed, pending the disposition by the tribunal hearing the Lemire case. In that case, the constitutionality of subsection 13(1) of the Act has been squarely put in issue.

[41]           Subsection 50(1) of the Federal Courts Act authorizes this Court to stay proceedings, in the exercise of its discretion. Subsection 50(1) provides as follows:

[42]           In my opinion, a stay of the present proceedings is appropriate on the grounds that the sole issue raised in the Applicants’ Amended Notice of Application is currently the subject of adjudication before a tribunal in the Lemire matter.

[43]           In WIC Premium Television Ltd. v. General Instrument Corp., [1999] F.C.J. No. 862 (F.C.T.D.) (QL), the Court addressed the factors to be considered in granting a stay when there are proceedings before another court or in another jurisdiction. These criteria include the risk of inconsistent findings, excessive costs and the capacity of the court to grant the complete or comprehensive remedy.

[44]           These factors are relevant in the present case. The tribunal hearing the Lemire matter is authorized to adjudicate upon the constitutional validity of subsection 13(1) of the Act and that disposition, including any subsequent application for judicial review, will be available for the guidance of the Court when the current matter proceeds.

[45]           A stay of the Court proceedings is a more appropriate disposition at this time than granting an order to convert this application into an action, pursuant to section 18.4(1) of the Federal Courts Act. In Macinnis, the Federal Court addressed the circumstances when an application should be converted to an action and concluded that consideration should be given to using subsection 18.4(2) only when the facts cannot be satisfactorily established or weighed through affidavit evidence. The test is whether such evidence will be inadequate, not whether trial evidence might be superior.

[46]           In this proceeding, I am not persuaded that the conversion of this application into an action is justified.

[47]           Accordingly, the motion is allowed, on the basis of subsection 50(1) of the Federal Courts Act. The proceeding is stayed, pending the outcome of the proceedings now before the tribunal in Lemire. The Respondents are granted an extension of time within which to file the responding affidavits, that is a period of forty (40) days after an Order lifting the stay herein. The Respondents shall also have their taxed costs on this motion.

 

ORDER

 

 

 

            The motion is allowed. The within matter is stayed pending the disposition of Richard Warman v. Mark Lemire, Tribunal File No. T1073/5405 proceedings before the Human Rights Tribunal.

            The Respondents are granted an extension of time; that is forty (40) days, within which to file their responding affidavits after the granting of an Order lifting this stay.

 

            The Respondents shall have their taxed costs on this motion.

 

           

“E. Heneghan”

 

 

 

FEDERAL COURT

                                                                

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                          T-572-06

 

STYLE OF CAUSE:                          Alexan Kulbashian et al. and Canadian Human Rights Commission et al.

 

 

PLACE OF HEARING:                    Vancouver, British Columbia

 

DATE OF HEARING:                      November 28, 2006

 

REASONS FOR ORDER

AND ORDER:                                   HENEGHAN J.

 

DATED:                                             April 2, 2007

 

 

APPEARANCES:

 

Douglas H. Christie	FOR THE APPLICANTS
Mr. Philippe Dufresne, Counsel, Canadian Human Rights Commission   Mr. Sean Gaudet Ms. Valerie Anderson Counsel for Attorney General of Canada	FOR THE RESPONDENTS

 

SOLICITORS OF RECORD:

 

Douglas H. Christie Victoria, B.C.	FOR THE APPLICANTS
John H. Sims, Q.C. Deputy Attorney General of Canada	FOR THE RESPONDENTS