Date: 20010625
Docket: A-25-00
Neutral Citation: 2001 FCA 212
CORAM: LINDEN J.A.
ISAAC J.A.
MALONE J.A.
BETWEEN:
ERNST ZÜNDEL
Appellant
- and -
SABINA CITRON, THE TORONTO MAYOR'S COMMITTEE ON COMMUNITY
AND RACE RELATIONS, THE CANADIAN HUMAN RIGHTS COMMISSION,
CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION, SIMON
WEISENTHAL CENTRE, CANADIAN JEWISH CONGRESS,
LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH
CANADIAN ASSOCIATION FOR FREE EXPRESSION
Respondents
- and -
THE ATTORNEY GENERAL OF CANADA
Intervenor
Heard at Toronto, Ontario, on Tuesday, June 5, 2001
JUDGMENT delivered at Ottawa, Ontario, on Monday, June 25, 2001
REASONS FOR JUDGMENT BY: MALONE J.A
CONCURRED IN BY: LINDEN J.A.
ISAAC J.A.
Date: 20010625
Docket: A-25-00
Neutral citation: 2001 FCA 212
CORAM: LINDEN J.A.
ISAAC J.A.
MALONE J.A.
BETWEEN:
ERNST ZÜNDEL
Appellant
- and -
SABINA CITRON, THE TORONTO MAYOR'S COMMITTEE ON COMMUNITY
AND RACE RELATIONS, THE CANADIAN HUMAN RIGHTS COMMISSION,
CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION, SIMON
WEISENTHAL CENTRE, CANADIAN JEWISH CONGRESS,
LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH
CANADIAN ASSOCIATION FOR FREE EXPRESSION
Respondents
- and -
THE ATTORNEY GENERAL OF CANADA
Intervenor
REASONS FOR JUDGMENT
MALONE J.A.
Introduction
This is an appeal from an order of the Federal Court, Trial Division, dated December 16, 1999, dismissing the appellant's application for judicial review of a decision made by a panel of the Human Rights Tribunal Panel (the "Panel") [1999] F.C.J. No 1960 (F.C.T.D). In its decision, the Panel dismissed the appellant's motion seeking the dismissal of complaints against him on the grounds of a reasonable apprehension of bias in the Panel arising from the wording of subsection 48.1(2) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, (the "Act").
The appeal raises two issues. First, is the Panel subject to the provisions of subsection 48.1(2) of the Act? Second, does subsection 48.1(2)'s qualification requirement that "Persons appointed as members of the Tribunal must have experience, expertise and interest in, and sensitivity to, human rights" give rise to a reasonable apprehension that such persons are biased?
Factual Background
On November 19, 1996, the Canadian Human Rights Commission (the "Commission") made a decision under the Act requesting the appointment of a tribunal to inquire into two complaints brought by the respondents Sabina Citron and the Toronto Mayor's Committee on Community and Race Relations against the appellant pursuant to subsection 13(1) of the Act.
On February 6, 1997, the Panel, consisting of Claude Pensa as Chair and Reva A. Devins and Professor Harish C. Jain as members, was appointed to hear the complaints. The Panel held its pre-hearing conference in May of 1997 and commenced hearing witnesses on an intermittent basis throughout 1997 and 1998.
In the spring of 1998, a new body, the Canadian Human Rights Tribunal (the "New Tribunal") was established by amendments to the Act in S.C. 1998, c. 9, section 27, which came into force on June 30, 1998 by Order-in-Council PC 1998-1013 (June 11, 1998). Subsection 48.1(2) of the amendments provided for the qualification for appointment of any person to the New Tribunal as follows:
48.1(2) Persons appointed as members of the Tribunal must have experience, expertise and interest in, and sensitivity to, human rights.
48.1(2) Les membres doivent avoir une expérience et des compétences dans le domaine des droits de la personne, y être sensibilisés et avoir un intérêt marqué pour ce domaine.
Effective June 30, 1998, Claude Pensa and Reva Devins were among four individuals appointed to the New Tribunal by order-in-council P.C. 1998-1198. Member Harish C. Jain was not so appointed. On December 1, 1998, Mr. Jain resigned from the Panel for personal reasons.
Before the Panel, the appellant sought an order quashing the proceedings on the grounds that the qualifications now required under subsection 48.1(2) of the Act for appointment to the New Tribunal raise a reasonable apprehension of bias on the part of members Pensa and Devins against him. It was argued that subsection 48.1(2) raises a reasonable apprehension that all of the appointees thereunder have an inherent bias towards human rights when acting in an adjudicative role which demands the fair balancing of both human rights and Charter rights and freedoms.
In reasons dated January 21, 1999, the Panel dismissed the motion. It reasoned that the wording in subsection 48.1(2) implied experience, expertise, interest and sensitivity to human rights not only consistent with the policies in the Act, but also in regard to human rights in the broadest sense. The statutory qualifications set out in subsection 48.1(2) could not give rise to a reasonable apprehension of bias considering that the overriding duty placed on panel members is to strive for fairness and a just result.
The appellant then commenced, in the Trial Division, an application for judicial review of the Panel's decision. As already stated, the Motions Judge dismissed the application by order dated December 16, 1999 for the following reasons:
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.
Analysis
(A) Applicability of Subsection 48.1(2) to the Panel
As to the first issue, I am of the opinion that the Panel is not subject to the provisions of section 48.1 of the Act which created the New Tribunal. I base this conclusion on my review of the transitional provisions in section 33 of the Act:
33.(1) In this section, "commencement day" means the day on which this section comes into force.
33.(1) Pour l'application du présent article, « entrée en vigueur » s'entend de l'entrée en vigueur de celui-ci.
(2) Subject to subsections (3), (4) and (5), the members of the Human Rights Tribunal Panel cease to hold office on the commencement day.
(2) Sous réserve des paragraphes (3), (4) et (5), le mandat des membres du Comité du tribunal des droits de la personne prend fin à la date d'entrée en vigueur.
(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.
(3) Les membres du tribunal des droits de la personne constitué en vertu de la Loi canadienne sur les droits de la personne avant la date d'entrée en vigueur conservent leurs pouvoirs à l'égard de la plainte qu'ils ont été chargées d'examiner.
48.1 (1) There is hereby established a tribunal to be known as the Canadian Human Rights Tribunal consisting, subject to subsection (6), of a maximum of fifteen members, including a Chairperson and a Vice-chairperson, as may be appointed by the Governor in Council.
48.1 (1) Est constitué le Tribunal canadien des droits de la personne composé, sous réserve du paragraphe (6), d'au plus quinze membres, don't le président et le vice-président, nommés par le gouverneur en conseil.
(2) Persons appointed as members of the Tribunal must have experience, expertise and interest in, and sensitivity to, human rights.
(2) Les membres doivent avoir une expérience et des compétences dans le domaine des droits de la personne, y être sensibilisés et avoir un intérêt marqué pour ce domaine.
There is no mention of the transfer of files, complaints or jurisdiction to the New Tribunal pursuant to section 33. Instead, subsection 33(2) granted the Panel continued jurisdiction and from July 1, 1998 to December 1, 1998 that Panel was comprised of the three original members which included Mr. Jain. As indicated earlier, Mr. Jain was not appointed to the New Tribunal pursuant to subsection 48.1(2).
In my view, it is impossible to conclude that Parliament ever intended that the subsection 48.1(2) appointment provisions would affect the members of the Panel already appointed and then legislated to continue its work under a different section of the Act. Rather, in my respectful view, Parliament's intention could only have been to have subsection 48.1(2) apply to new matters and to New Tribunal members appointed on or after June 30, 1998. A similar conclusion was reached recently by this Court in the case of Government of the Northwest Territories v. Public Service Alliance of Canada and Canadian Human Rights Commission, 2001 FCA 162, [2001] F.C.J. No. 791 (QL) where Létourneau J.A., speaking for the Court, stated (at para. 26):
It is not disputed that the three members whose jurisdiction is challenged in this appeal were not appointed to the new Tribunal. Consequently, their status as well as the fate of the complaints they were hearing at the time came to be governed by subsection 33(3). In this regard, the appellant is mistaken in its contention that the three members need an extension of their appointment and that such extension requires the approval of the Chairperson of the Canadian Human Rights Tribunal pursuant to subsection 48.2(2) of the amended Act. The members of the Human Rights Tribunal Panel, in their decision of December 4, 1998, at page 24, properly concluded that subsection 48.2(2) does not apply to them as they are not members of the Canadian Human Rights Tribunal to whom the subsection is evidently meant to apply. There is no need for them to seek an extension of an appointment which has expired for an office that they no longer hold. Subsections 33(4) and (5) also evidence Parliament's intent to maintain in a similar way the jurisdiction of the members of any Review Tribunal or of any Employment Equity Review Tribunal. Under subsection 33(6), all these members, including the members of the former Human Rights Tribunal Panel are to complete their work under the supervision and direction of the Chairperson of the new Canadian Human Rights Tribunal. According to subsections 33(7) and (8), they are to be paid a remuneration fixed by the Governor in Council as well as travel and living expenses incurred in carrying out their temporary duties.
(B) Subsection 48.1(2) Conditions of Appointment
Although this conclusion is sufficient to dispose of the appeal, I nevertheless must, out of deference to the arguments raised by counsel regarding the issue of a reasonable apprehension of bias, address the words "sensitivity to, human rights" found in subsection 48.1(2). In my opinion, the provision in subsection 48.1(2) respecting the qualifications of persons appointed to the New Tribunal on or after June 30, 1998 does not, without more, give rise to a reasonable apprehension of bias. The phrase "sensitivity, to human rights" connotes awareness of and interest in human rights. It does not connote a predilection in favour of human rights. As Cory J. observed in R. v. S.(R.D.), [1997] 3 S.C.R. 484 at 534:
True impartiality does not require that the judge have no sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.
...
It is obvious that good judges will have a wealth of personal and professional experience, that they will apply with sensitivity and compassion to the cases that they must hear. (Emphasis added)
The learned Judge was there dealing with allegations of a reasonable apprehension of bias against a Youth Court Judge. The observations he made are equally applicable to members of administrative tribunals, including the Panel members in this case.
The words "sensitivity to, human rights" must be read in conjunction with the words in the rest of subsection 48.1(2), that is, they are not to be construed in isolation but in light of their immediate context (Ruth Sullivan, Driedger on the Construction of Statutes, 3rd Ed. (Toronto: Butterworths, 1994) at page 197). When read in association with the other qualifications for appointment, namely experience, expertise and interest in human rights, sensitivity implies no more than the need to recognize and be aware of human rights in the broadest sense. The word does not, as suggested by the appellant, require that appointees be individuals predisposed to arguments supporting human rights or favourable to them as some dictionary definitions may indicate when taken in isolation. Sensitivity to human rights does not involve an insensitivity to other rights. It is only meant to exclude people with closed minds on human rights issues.
I find support for this conclusion from an examination of the French language version of subsection 48.1(2):
(2) Les membres doivent avoir une expérience et des compétences dans le domaine des droits de la personne, y être sensibilisés et avoir un intérêt marqué pour ce domaine. (Emphasis added).
The French word "sensibilisés" means sensitive or alive to, socially aware (Le Robert & Collins: dictionnaire français-anglais, anglais-français: senior, 1st Ed. (Scarborough, Ont.: HarperCollins 1995)). As is so often the case in the interpretation of legislation, one official language clarifies the meaning of the other official language.
For these reasons, I would dismiss the appeal. The parties in opposition to the appellant will each have their costs except Sabina Citron and the Canadian Holocaust Remembrance Association. As those parties were represented by the same counsel, they will only be entitled to one set of costs.
(B. Malone)
J.A.
I agree
A.M Linden
J.A.
I agree
Julius A. Isaac
J.A.
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