Zündel v. Canada (Attorney General), docket T-2765-96

Date: 19980505

Docket: T-2765-96

BETWEEN:

     ERNST ZÜNDEL

     Applicant

     - and -

     THE ATTORNEY GENERAL OF CANADA

     - and -

     SABINA CITRON

     - and -

     TORONTO MAYOR'S COMMITTEE ON

     COMMUNITY AND RACE RELATIONS

     Respondents

     - and -

     THE CANADIAN HUMAN RIGHTS COMMISSION

     - and -

     CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION

---

     - and -

     LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA

     - and -

     CANADIAN JEWISH CONGRESS

     - and -

     SIMON WIESENTHAL CENTRE

     Intervenors

     REASONS FOR ORDER

RICHARD J.:

[1]      By originating notice of motion dated December 12, 1996 and filed in this Court on December 17, 1996, the applicant made an application for judicial review for the purpose of obtaining:

(a)      an Order in the nature of certiorari with prohibition in aid quashing the decision of the Canadian Human Rights Commission under paragraph 44(3)(a) of the Canadian Human Rights Act, 1976-77, c. 33, s. 1 (herein after called "the Act") to request the President of the Human Rights Tribunal to appoint a Human Rights Tribunal to inquire into two complaints laid against the applicant by Sabina Citron and the Toronto Mayor's Committee on Community and Race Relations and prohibiting any hearing before the Human Rights Tribunal on the said complaints; as beyond the jurisdiction of subsection 13(1) of the Act.

(b)      relief under subsection 24(1) of the Canadian Charter of Rights and Freedoms in the nature of certiorari with prohibition in aid;

(c)      an Order for a stay of proceedings pending the determination of this judicial review application, directing a stay of any inquiry by a Human Rights Tribunal under the Act;

(d)      a Declaration pursuant to subsection 24(1) of the Canadian Charter of Rights and Freedoms that the actions of the Canadian Human Rights Commission is in contravention of paragraph 2(b) of the Charter and not a limit prescribed by law pursuant to section 1 of the Charter and permanently enjoining any further proceeding upon the complaints referred to above;

(e)      a Declaration that subsection 13(1) of the Act is ultra vires the Parliament of Canada pursuant to section 52 of the Constitution Act, 1982 for breach of section 2(b) of the Charter if section 13(1) applies in these circumstances, contrary to the above.

[2]      By amended notice of motion dated March 30, 1998 (the First Motion), the applicant, the moving party, sought:

(a)      an order pursuant to section 50 of the Federal Court Act staying any further hearings before the Human Rights Tribunal concerning two complaints laid against the applicant pursuant to section 13 of the Canadian Human Rights Act;

(b)      a declaration pursuant to subsection 24(1) of the Canadian Charter of Rights and Freedoms that the proceedings be stayed as an abuse of process contrary to section 7 of the Charter; and

(c)      the costs of this motion.

[3]      The grounds of the First Motion are:

(1)      that this Honourable Court in the decision of Bell Canada v. Canadian Telephone Employees Assn., [1998] F.C.J. No. 313 handed down March 23, 1998, held that the Human Rights Tribunal is not an independent quasi-judicial body institutionally capable of providing a fair hearing in accordance with the rules of natural justice;

(2)      that the applicant should not be subject to any further hearings before the Human Rights Tribunal and that any hearings before the Tribunal are void;

(3)      the proceedings before the Human Rights Tribunal are tainted with a reasonable apprehension of bias for the reasons given in the case of Bell Canada, supra, and it would be an abuse of process, contrary to section 7 of the Charter, to force the applicant to be subjected to further proceedings before the Tribunal; and subsection 24(1) of the Charter allows a superior court to remedy a breach of section 7 where circumstances warrant as they do here.

[4]      Paragraph 50(1)(b) and subsection 50(3) of the Federal Court Act read as follows:

Stay of proceedings 50. (1) The Court may, in its discretion, stay proceedings in any cause or matter,      [...] (b) where for any other reason it is in the interest of justice that the proceedings be stayed.      [...] Lifting of stay (3) Any stay ordered under this section may subsequently be lifted in the discretion of the Court.

Suspension d'instance 50. (1) La Cour a le pouvoir discrétionnaire de suspendre les procédures dans toute affaire_:      [...] b) lorsque, pour quelque autre raison, l'intérêt de la justice l'exige.      [...] Levée de la suspension (3) La suspension peut ultérieurement être levée à l'appréciation de la Cour.

[5]      By separate notice of motion dated March 30, 1998 (the Second Motion), the applicant, the moving party, sought:

(a)      an interim order pursuant to section 18.2 of the Federal Court Act staying the hearing before the Human Rights Tribunal of two complaints laid against the applicant pursuant to section 13 of the Canadian Human Rights Act pending the determination of this judicial review application;

(b)      an order that the intervenor proceed to file its Application Record without further right of cross-examination of the applicant's affiants or further cross-examination of the applicant himself or any right to compel answers previously refused on the applicant's affidavits filed in support of the judicial review application;

(c)      alternatively to the order requested in paragraph (a), an order that the intervenor pay all costs of the applicant arising out of the continuance of the Human Rights Tribunal hearings from May 26, 1997 to the end of the hearings; and

(d)      the costs of this motion.

[6]      Section 18.2 reads as follows:

Interim orders 18.2 On an application for judicial review, the Trial Division may make such interim orders as it considers appropriate pending the final disposition of the application. 1990, c. 8, s. 5.	Mesures provisoires 18.2 La Section de première instance peut, lorsqu'elle est saisie d'une demande de contrôle judiciaire, prendre les mesures provisoires qu'elle estime indiquées avant de rendre sa décision définitive. 1990, ch. 8, art. 5.

[7]      The grounds of the Second Motion are:

(1)      the intervenor, Canadian Human Rights Commission, misled the Court on the purpose of its application for judicial review;

(2)      the intervenor, Canadian Human Rights Commission, has abused and continues to abuse the process of the Court by deliberate and gross delay in the judicial review proceedings to ensure that the applicant is forced to go through a lengthy and costly hearing before the Human Rights Tribunal;

(3)      the intervenor has used these proceedings to obtain information and admissions going to the merits of the decision to be made by the Human Rights Tribunal when its right of intervention was limited to jurisdictional issues only;

(4)      the intervenor has used the refusal of the applicant to answer these improper questions on cross-examination as a further means to delay the judicial review application;

(5)      the intervenor, Canadian Human Rights Commission, has made contradictory legal submissions to this Honourable Court and to the Human Rights Tribunal regarding the issue of jurisdiction indicating bad faith and malice and contempt on the part of the intervenor in its conduct towards both this Court and the Tribunal;

(6)      the intervenor is in contempt of this Honourable Court as it has refused to pay the costs of $1,750.00 ordered against it to the applicant forthwith as ordered by Mr. Justice Muldoon by order dated January 30, 1998;

(7)      at the urging of the intervenor, Canadian Human Rights Commission, the Human Rights Tribunal refused to decide whether it had jurisdiction over the complaints or not under section 13 of the Canadian Human Rights Act notwithstanding a preliminary motion by the applicant that it do so and refused to hear evidence concerning its jurisdiction; the position taken by the intervenor was to force the applicant to go through the entire hearing process before any finding of jurisdiction by the Tribunal was considered;

(8)      the Human Rights Tribunal has no jurisdiction to decide the constitutional challenge raised by the judicial review application regarding subsection 13(1) of the Canadian Human Rights Act and the hearing should be stayed until those issues are resolved;

(9)      in all the circumstances, it is in the interest of justice that the proceedings before the Human Rights Tribunal be stayed where a judicial review application raises issues going to the essence of an administrative tribunal's jurisdiction;

(10)      in the alternative, the applicant should be compensated for all costs incurred in the proceedings before the Human Rights Tribunal which directly result from the abuse of process by the intervenor.

[8]      I will deal firstly with the Second Motion.

[9]      By Order dated March 18, 1997, Mr. Justice Noël denied the applicant's earlier motion, dated February 20, 1997, for an order staying the proceedings before the Tribunal pending the determination of the applicant's motion for judicial review.

[10]      The applicant's motion pursuant to section 18.2 of the Federal Court Act for a stay of the hearing pending the determination of his judicial review application seeks the same relief as was denied by Mr. Justice Noël. No appeal was taken from the Order of Noël J. I agree with the decision of Mr. Justice Noël. That part of the Second Motion is, accordingly, dismissed.

[11]      In the Second Motion, the moving party also seeks a stay to remedy some unfairness to the individual that results from state misconduct¹. There is no evidence of state misconduct before the Tribunal whose proceedings are sought to be stayed. The complaint seems to be directed at the conduct of the Canadian Human Rights Commission (CHRC) in the underlying judicial review application, which allegedly resulted in delays. If such conduct did take place, it can be dealt with on an award of costs at the end of the judicial review proceeding. In any event, by separate order, I have established a strict timetable to be followed by all participants to the judicial review application.

[12]      Accordingly, the relief requested in the Second Motion is denied.

[13]      In the First Motion, the moving party is, in effect, seeking an interim stay of the inquiry by the Tribunal, until the appeal in the Bell Canada case is determined or the legislation is amended. Therefore, the three-stage test in RJR-MacDonald² must be considered.

[14]      In the Bell Canada case, Madame Justice McGillis ordered that the proceedings before that Human Rights Tribunal be quashed and that there be no further proceedings in that matter, until the problems identified in her Reasons for Order in relation to security of tenure and financial security are corrected by legislative amendments to the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended.

[15]      The application for judicial review in that case raised the question of whether the Human Rights Tribunal (the Tribunal) is an institutionally independent and impartial quasi-judicial body.

[16]      On June 4, 1997, that Tribunal issued written reasons in which it concluded that it was "... an independent quasi-judicial body, institutionally capable of providing a fair hearing in accordance with the principles of natural justice and fundamental freedom". On June 10, 1997, Bell Canada filed a judicial review application, in file T-1257-97, challenging the decision of the Tribunal concerning its independence.

[17]      Madame Justice McGillis made a thorough analysis of the legislative history of the Commission and the Tribunal Panel and the practice governing their relationship.

[18]      On the question of institutional independence, she concluded: "that the legislative scheme in the Act relating to security of tenure and financial security weakens the status of a Tribunal appointed under the Act to such an extent that it lacks the requisite level of institutional independence. In the circumstances, I am satisfied that a fully informed and reasonable person would have a reasonable apprehension of bias on the part of a Tribunal appointed under the Act".

[19]      She then expressed the consequences of her finding:

In Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623, the Supreme Court of Canada indicated, in a unanimous decision, that a finding of a reasonable apprehension of bias vitiates the right to a fair hearing. The Court stated as follows, at page 645:

     The Consequences of a Finding of Bias

Everyone appearing before administrative boards is entitled to be treated fairly. It is an independent and unqualified right. As I have stated, it is impossible to have a fair hearing or to have procedural fairness if a reasonable apprehension of bias has been established. If there has been a denial of a right to a fair hearing it cannot be cured by the tribunal's subsequent decision. A decision of a tribunal which denied the parties a fair hearing cannot be simply voidable and rendered valid as a result of the subsequent decision of the tribunal. Procedural fairness is an essential aspect of any hearing before a tribunal. The damage created by apprehension of bias cannot be remedied. The hearing, and any subsequent order resulting from it, is void.

I am satisfied that the principles enunciated by the Supreme Court of Canada in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), supra, apply to a finding of reasonable apprehension of bias based on a perceived lack of institutional independence on the part of an administrative tribunal. I have therefore concluded that the proceedings before the Tribunal in the present case are void. The fundamental rights at issue in the present case cannot be determined by a Tribunal appointed under the Act until legislative reform, which has been sought for so many years, corrects the problems identified in relation to security of tenure and financial security.

[20]      Madame Justice McGillis did not declare the Tribunal appointment provisions of the Act invalid or inoperative. She did not base her decision on a Charter breach or on an inconsistency with the Canadian Bill of Rights. Based on the conclusion,

1)      that the legislative scheme in the Act relating to security of tenure and financial security weakens the status of a Tribunal appointed under the Act to such an extent that it lacks the requisite level of institutional independence; and,

2)      that a fully informed and reasonable person would have a reasonable apprehension of bias on the part of a Tribunal appointed under the Act.

Madame Justice McGillis decided that the principle enunciated by the Supreme Court of Canada in the Newfoundland Telephone Co. case, that a finding of a reasonable apprehension of bias vitiates the right to a fair hearing, applies to a finding of reasonable apprehension of bias on a perceived lack of institutional independence on the part of an administrative tribunal.

[21]      Accordingly, she ordered that there be no further proceedings before that Tribunal until the problems identified by her, in relation to security of tenure and financial security, are corrected by legislative amendments to the Act.

[22]      I am informed by counsel that an appeal from the decision of Madame Justice McGillis has been commenced in the Federal Court of Appeal.

[23]      Given the decision of Madame Justice McGillis in the Bell Canada case which is now under appeal, there is a serious question to be tried. The question of irreparable harm does not determine the matter. Rather, in my view, the assessment of the balance of convenience is determinative. This involves a consideration of harm to the public interest.

[24]      As I stated in Bell Canada³, I do not believe that it is in the public interest to delay proceedings before a Tribunal.

[25]      In the Bell Canada case, the Tribunal heard a number of motions but had yet to hear any witnesses. In the present case, the Tribunal has heard thirteen witnesses over a period of eleven months and is scheduled to complete its hearings in June of this year.

[26]      Whether one applies the test of balance of convenience in the three-stage RJR-MacDonald test or the discretion given to the Court under paragraph 50(1)(b) of the Federal Court Act, the result in my view is the same.

[27]      I conclude that it is in the public interest not to grant a stay of Tribunal inquiries which have commenced and where hearings are presently underway. Time for the hearings has been set aside, witnesses and counsel have been involved in preparation, the participants did not challenge the institutional independence of the Tribunal prior to the hearings and the further delay would be greater than in the case of inquiries where the hearings have not yet commenced.

[28]      This contrants with the situation where a Tribunal has been appointed but has not commenced hearing evidence in support of the complaint.

[29]      Therefore, where a Tribunal has been appointed and has commenced hearing evidence in support of the complaint, its proceedings should not be stayed and it should be allowed to complete its proceedings.

[30]      In the First Motion, the moving party also alleges a breach of section 7 of the Charter as further ground for the relief sought. The short answer to that allegation is that the proceeding before the Tribunal is non-penal and does not engage the life, liberty or security of the person.

[31]      Accordingly, the relief sought by the moving party in the First Motion is denied.

     __________________________

     Judge

Ottawa, Ontario

May 5, 1998

__________________

¹      See Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391.

²      RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311.

³      Bell Canada v. Communications, Energy and Paperworkers Union of Canada et al., (1997) 127 F.T.R. 44 at 57.