Zündel v. Citron, docket T-190-99

                

                            

Date: 19991216

Dockets: T-190-99

BETWEEN:

     ERNST ZÜNDEL

     Applicant

     - and -

SABINA CITRON, TORONTO MAYOR'S COMMITTEE ON COMMUNITY AND RACE RELATIONS, THE CANADIAN HUMAN RIGHTS COMMISSION, CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION, SIMON WIESENTHAL CENTRE, CANADIAN JEWISH CONGRESS, LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH, CANADIAN ASSOCIATION FOR FREE EXPRESSION

     Respondents

     REASONS FOR ORDER AND ORDER

CAMPBELL J.

[1]      Mr. Zündel attacks the impartiality of members of a Human Rights Tribunal hearing a complaint against him on the basis that a statutory requirement, providing that they must have "experience, expertise and interest in, and sensitivity to, human rights",

creates an apprehension that they are biased against him. For the reasons which follow, I find that Mr. Zündel"s attack is groundless.¹

A. The background

[2]      The history relating to the present application is as follows:²

1. On November 19, 1996, the Canadian Human Rights Commission made a decision under the Canadian Human Rights Act, 1976-77, c. 33, s. 1 to request the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal to inquire into two complaints laid against the Applicant by the Respondents Sabina Citron and the Toronto Mayor"s Committee on Community and Race Relations under s. 13(1) of the Canadian Human Rights Act .

2. A Human Rights Tribunal was appointed on February 6, 1997 consisting of Claude Pensa, Chairperson, Reva E. Devins, and Professor Harish C. Jain ("the Tribunal") to hear the case, all of whom where members of the Human Rights Tribunal Panel under the Canadian Human Rights Act .

3. The Human Rights Tribunal held its pre-hearing conference in May of 1997 and commenced hearing witnesses on an intermittent basis throughout 1997 and 1998.

4. In the spring of 1998, a new body, the Canadian Human Rights Tribunal, was established under amendments to the Canadian Human Rights Act ("the CHRA")(S.C. 1998, c. 9, s. 27). These amendments came into force by Order-in-Council on June 30, 1998 (PC 1998-1014, June 11, 1998).

5. Respecting the qualification for appointment of any person to the new Canadian Human Rights Tribunal, s. 48.1(2) of the new amendments provides as follows:

Persons appointed as members of the Tribunal must have experience, expertise and interest in, and sensitivity to, human rights.

6. Effective June 30, 1998, members Claude Pensa and Reva Devins were appointed to the new Canadian Human Rights Tribunal by Order-in-Council (PC 1998-1198).

7. Member Harish C. Jain was not appointed to the new Canadian Human Rights Tribunal and, on December 1, 1998, resigned from the Tribunal for personal reasons.

[3]      The Applicant argued before the Tribunal for an order quashing the proceedings taken against him on the ground that, because members Pensa and Devins meet the qualifications outlined in s. 48.1(2) of the CHRA, there exists an apprehension of bias on their part.

[4]      Applying the correct test for apprehension of bias found by the Supreme Court of Canada in Committee for Justice and Liberty v. National Energy Board (1978), 1 S.C.R. 369, the Tribunal found as follows:

The question that follows is, what would an informed person, viewing the matter realistically and practically and having thought the matter through, conclude? In our view, section 48.1(2) connotes a standard of qualification consistent with the words used in the section with respect to a specialized area, namely, human rights. There is nothing unique about requiring a certain basis of interest or expertise as a condition of appointment to an administrative tribunal.

...

Returning to section 48.1(2), it seems to us the words used should be considered in the context of section 2 of the Act which describes the legislative purpose as being committed to the principle of equal opportunity without being hindered by discriminatory practices. The wording in section 48.1(2) implies experience, expertise and interest in, and sensitivity to human rights not only consistent with the policies in the Act, but human rights in the broadest sense. The selecting of tribunal members with the described qualifications does not, in our view, create a reasonable apprehension of bias considering that the overriding duty placed on members is to strive for fairness and a just result.

B. The issue

[5]      It is agreed that, in reaching decisions, the high standard of impartiality must be met by members of the Canadian Human Rights Tribunal, both before and after the passage of s. 48.1(2) of the CHRA.

[6]      Thus, respecting this standard, the question framed by the applicant is as follows:

Do the provisions of s. 48.1(2) of the CHRA raise a reasonable apprehension of bias such as to void the proceedings?

                                

[7]      The relevance of this issue has been placed in doubt. The opposing Respondents argue that, as a result of the transitional provisions with respect to the amendments to the CHRA, the qualification requirements of s. 48.1(2) need not be met with respect to the Tribunal members deciding the present case because they acquired their jurisdiction prior to s. 48.1(2) coming into force. ³ Indeed, the Tribunal made this finding.

[8]      I agree with the opposing Respondents" argument, but also find that this is not a bar to the Applicant"s attack. The Applicant"s argument does not concern the precise application of s. 48.1(2) of the CHRA to the Tribunal members in the present case. Instead, it concerns the effect that qualifying with the provision has on the issue of apprehension about their impartiality generally. The argument is that, because Tribunal members Pensa and Devins have been appointed to the new Canadian Human Rights Tribunal, and, therefore, have been found to meet the qualifications in s. 48.1(2), their impartiality in the present case comes into question. Thus, I find the Applicant"s question to be relevant.

C. Analysis

[9]      As an aspect of the Applicant"s argument concerning the effect of s. 48.1(2) of the CHRA , the Applicant asserts that the provision should be viewed as an element in play in a conflict between group rights protected by the CHRA, and individual rights, such as freedom of speech; that is, having Tribunal members qualified under s. 48.1(2) wrongly supports the former, at the expense of the latter.⁴

[10]      The constitutionality of s. 48.1(2) of the CHRA is not being attacked. This being so, I do not intend to offer any opinion on the viability of this conflict argument.

[11]      In answer to the question framed by the Applicant, I generally agree with the Tribunal"s finding. In my opinion, an informed person, while viewing the matter realistically and practically, and having thought the matter through, would conclude that s. 48.1(2) of the CHRA merely expresses what is generally expected of persons who are required to render impartial decisions: a high level of knowledge and understanding about the subject matter being litigated. In my opinion, the informed person would interpret the word "sensitivity" in s. 48.1(2) of the CHRA to mean just that. Therefore, I find the answer to the question is: no.

[12]      Accordingly, the application is dismissed.

[13]      I award costs against the Applicant in favour of each of the Respondents, with the exception of the Canadian Association for Free Expression.

                                 "Douglas R. Campbell"

Judge

TORONTO, ONTARIO

December 16, 1999

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:                          T-190-99

STYLE OF CAUSE:                      ERNST ZÜNDEL

                             - and -

SABINA CITRON, TORONTO MAYOR'S COMMITTEE ON COMMUNITY AND RACE RELATIONS, THE CANADIAN HUMAN RIGHTS COMMISSION, CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION, SIMON WIESENTHAL CENTRE, CANADIAN JEWISH CONGRESS, LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH, CANADIAN ASSOCIATION FOR FREE EXPRESSION

                            

DATE OF HEARING:                  WEDNESDAY, DECEMBER 15, 1999

PLACE OF HEARING:                  TORONTO, ONTARIO

REASONS FOR ORDER AND ORDER BY:      CAMPBELL, J.

DATED:                          THURSDAY, DECEMBER 16, 1999

APPEARANCES:                      Mr. Douglas H. Christie

                             Ms. B. Kalaszka

                                 For the Applicant

                             Ms. Robyn M. Bell             

                                 For the Respondent

                                 Simon Wiesenthal Centre

                             Mr. G. Rhone

                                 For the Respondent

Canadian Association for the Free Expression Inc.

                             Mr. D. Pagorski

                                 For the Respondent

Canadian Human Rights Commission

                             Ms. J. Chan

                                 For the Respondent

                                 Canadian Jewish Congress

                             Mr. A. Weretelnyk

                                 For the Respondent

Mayor"s Committee on Community and Race Relations

                             Ms. Jane Bailey

                                 For the Respondent

                                 Sabina Citron and Canadian

                                 Holocaust Remembrance Assoc.

                             Mr. R. Kramer

                                 For the Respondent

                                 Attorney General of Canada

            

SOLICITORS OF RECORD:              Douglas H. Christie

                             Barrister & Solicitor

                             810 Courtney Street

                             Victoria, BC

                             V8W 1C4

                             Barbara Kulaszka

                             Barrister & Solicitor

                             9 Cheer Dr., P.O. Box 1635,

                             Brighton, ON

                             K0K 1H0

For the Applicant

                              Tory Tory Deslauriers Binnington

                             Barristers & Solicitors

                             Suite 3000, Aetna Tower,

                             P.O. Box 270

                             Toronto-Dominion Centre

                             Toronto, Ontario

                             M5K 1N2

                                 For the Respondents

                                 Sabina Citron and Canadian

                                 Holocaust Remembrance Assoc.

Solicitors of Record cont"d...                  City of Toronto

                             Legal Division, Litigation

                             100 Queen Street West

                             City Hall, West Tower, 13^th Floor

                             Toronto, Ontario

                             M5H 2N2

                                 For the Respondent

Toronto Mayor"s Committee on Community and Race Relations

                             Canadian Human Rights Commission

                             344 Slater Street, 8^th Floor

                             Ottawa, Ontario

                             K1A 1E1

                                 For the Respondent

Canadian Human Rights Commission

                             Bennett Jones

                             Barristers & Solicitors

                             One First Canadian Place

                             Suite 3400, P.O. Box 130

                             Toronto, Ontario

                             M5X 1A4

                                 For the Respondent

                                 Simon Wiesenthal Centre

                             Blake, Cassels & Graydon

                             Barristers & Solicitors

                             Box 25, Commerce Court West

                             Toronto, Ontario

                             M5L 1A9

                                 For the Respondent

                                 Canadian Jewish Congress

                             Dale, Streiman & Kurz

                             Barristers & Solicitors

                             480 Main Street,

                             Brampton, Ontario

                             L6V 1P8

                                 For the Respondent

                                 League for Human Rights of

                                 B"nai Brith Canada

                             Canadian Association for Free Expression

                             1000 Cedarglen Gate

                             Mississauga, Ontario

                             L5C 3Z5

                                 For the Respondent in person                                     

                             FEDERAL COURT OF CANADA

                                 Date: 19991216

                        

         Docket: T-190-99

                             Between:

ERNST ZÜNDEL

                                            

                                                 Applicant

                             - and -

SABINA CITRON, TORONTO MAYOR'S COMMITTEE ON COMMUNITY AND RACE RELATIONS, THE CANADIAN HUMAN RIGHTS COMMISSION, CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION, SIMON WIESENTHAL CENTRE, CANADIAN JEWISH CONGRESS, LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH, CANADIAN ASSOCIATION FOR FREE EXPRESSION

                        

     Respondents

                    

                            

            

                                                                             REASONS FOR ORDER

                             AND ORDER

                                                                     

__________________

¹ All Respondents in the present case, with the exception of the Canadian Association for Free Expression, argued for this result. The Canadian Association for Free Expression argued in support of the Applicant"s position. For brevity, the Respondents who opposed the Applicant in the present application will be referred to as the "opposing Respondents".

² The following précis is adapted from the Applicant"s Application Record, Memorandum of Fact and Law, pp.25 to 27.

³ Subsections 33(1)-(3) of the amending statute (S.C. 1998, c. 9) are transitional provisions which provide:
         "33(1) In this section, "commencement" day means the day on which this section comes into force [June 30, 1998].
         (2) Subject to subsections 3, 4 and 5, the members of the Human Rights Tribunal Panel cease to hold office on the commencement day.
         (3) The members of any Human Rights Tribunal appointed under the Canadian Human Rights Act before the commencement day have jurisdiction with respect to any inquiry into the complaint in respect of which the Human Rights Tribunal was appointed." [Emphasis added]

⁴ The Canadian Association for Free Expression generally supports the Applicant in the present application, and, in particular, argued this point.