Date: 19980129
Docket: A-632-97
CORAM: MARCEAU J.A.
STRAYER J.A.
LÉTOURNEAU J.A.
BETWEEN:
ERNST ZUNDEL
APPELLANT
(APPLICANT)
AND:
THE ATTORNEY GENERAL OF CANADA
RESPONDENT
(RESPONDENT)
and
THE CANADIAN HUMAN RIGHTS COMMISSION
RESPONDENT
(INTERVENOR)
Heard at Vancouver, B.C., Thursday, January 29, 1998
Judgment delivered from the Bench at Vancouver, B.C., Thursday, January 29, 1998
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
Date: 19980129
Docket: A-632-97
CORAM: MARCEAU J.A.
STRAYER J.A.
LÉTOURNEAU J.A.
BETWEEN:
ERNST ZUNDEL
APPELLANT
(APPLICANT)
AND:
THE ATTORNEY GENERAL OF CANADA
RESPONDENT
(RESPONDENT)
and
THE CANADIAN HUMAN RIGHTS COMMISSION
RESPONDENT
(INTERVENOR)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, B.C.
on Thursday, January 29, 1998)
LÉTOURNEAU J.A.
[1] We see no merit whatsoever in the submissions made by the Appellant. Denault J. had jurisdiction under Rule 1611(3) of the Federal Court Rules to grant intervenor status to the Canadian Human Rights Commission on the terms he employed in pending judicial review proceedings and the Appellant, having failed to directly attack this order, is not now entitled to launch a collateral attack against it in the context of an appeal of a decision of Rothstein J. compelling the Appellant to attend for cross-examination by the Human Rights Commission counsel on the affidavits that he filed in the judicial review proceedings.
[2] Obviously, the Appellant does not like the contents of the order issued by Denault J., but his dislike of the order does not make it a nullity which entitles him to ignore or discard it. Nor is he entitled to seek from this Court an order to stay the order of Denault J. or complain that Rothstein J. should have limited it in a way which would have had the effect in practice of quashing and rewriting it. It is appropriate to refer to the words of Iacobucci J. in R. v. Litchfield1, where he stated that
| the lack of jurisdiction which would oust the rule against collateral attack would be a lack of capacity in the court to make the type of order in question, such as a provincial court without the power to issue injunctions. |
|
[3] As for the order of Rothstein J. which is properly before us on this appeal, the Appellant has not convinced us that we should intervene.
[4] The February 20, 1997 affidavit was filed in support of a motion to add evidence in the judicial review proceedings and became part of these proceedings for all purposes including the parties' and intervenors' right to cross-examine the affiant.
[5] It is obvious that, in granting costs against the Appellant, the motions judge found special reasons in the fact that the Appellant's arguments were an indirect attack on a valid order issued by Denault J. and had no relationship to the merits of the motion that was before him. We see no reasons to go against the exercise of that discretion in the circumstances.
[6] The appeal will be dismissed with costs.
"Gilles Létourneau"
J.A.
__________________
1 [1993] 4 S.C.R. 333, at p. 348.
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