Winnicki v. Canada (Human Rights Commission), 2007 FCA 51

Date: 20070117

Docket: A-334-06

Citation: 2007 FCA 51

Present:          NOËL J.A.

                        SEXTON J.A.

                        PELLETIER J.A.

BETWEEN:

TOMASZ WINNICKI

Appellant

and

CANADIAN HUMAN RIGHTS COMMISSION

Respondent

Heard at Ottawa, Ontario, on January 16, 2007.

Order delivered at Ottawa, Ontario, on January 17, 2007.

REASONS FOR ORDER BY:                                                                                      SEXTON J.A.

CONCURRED IN BY:                                                                                                      NOËL J.A.

                                                                                                                                 PELLETIER J.A.

Date: 20070117

Docket: A-334-06

Citation: 2007 FCA 51

Present:          NOËL J.A.

                        SEXTON J.A.

                        PELLETIER

BETWEEN:

TOMASZ WINNICKI

Appellant

and

CANADIAN HUMAN RIGHTS COMMISSION

Respondent

REASONS FOR ORDER

SEXTON J.A.

[1]               Subsequent to the decision of the Federal Court whereby the appellant was sentenced to nine months imprisonment for being in contempt of the injunction order, the appellant moved for release upon bail pending the appeal to this court.

[2]               By Order dated September 28, 2006, Malone J.A. ordered the appellant be released on certain conditions. One condition was "the appellant shall refrain from contacting or communicating directly or indirectly with Mr. Richard Warman or the members, staff or counsel of the Commission with the exception of communicating through his counsel, Mr. James Foord for purposes directly related to this appeal." A second condition was that the appellant shall post with the Court cash bail of $5,000.00 or its equivalent payable to the Receiver General of Canada. The $5,000.00 was posted.

[3]               The respondent has brought a motion alleging that there was a breach of stay condition and that therefore the $5,000.00 should be forfeited. Specifically, the appellant attended a public hearing before the Canadian Human Rights Tribunal in Toronto in which Mr. Warman was involved. Mr. Warman was the person who made the initial complaint to the Canadian Human Rights Commission about the appellant's messages posted on the internet. The appellant claims to have been interested in the particular hearing as it raised legal issues which were of interest to him.

[4]               Mr. Warman complained to the Commission indicating that he was a witness at the hearing and that he was startled to see the appellant sitting facing him in the hearing room approximately 10 meters away. Mr. Warman claims to have been intimidated by the presence of the appellant as well as by death threats which had been made against him on the internet by persons presently unknown.

[5]               The Canadian Human Rights Commission takes the position that this constitutes a breach of the stay order of Malone J.A. in which the appellant was prohibited from contacting or communicating directly or indirectly with Mr. Warman or members of the Canadian Human Rights Commission.

[6]               The Commission argued that the mere presence of the appellant effectively communicated a threatening message to Mr. Warman thus resulting in a breach of the stay order. I have concluded, not without some difficulty, that this does result in a breach. When one considers the hateful messages which had been posted on the internet by the appellant against Mr. Warman it is understandable that the appellant's sudden appearance in the same hearing room when there was no need for him to be there, could constitute a communication to Mr. Warman of a disturbing nature.

[7]               It is agreed that the appellant made no statements and caused no disturbance at the hearing so that one cannot call the communication an extremely serious or violent one.

[8]               The Canadian Human Rights Commission asks that the $5,000.00 posted as bail be forfeited as a result. In my view this is too harsh a penalty as the nature of the communication does not warrant such a severe penalty. I am of the view that a forfeiture of $1,000.00 would be more appropriate.

[9]               Therefore there will be forfeiture in the amount of $1,000.00 of the bail money.

[10]           The Commission should have its costs of this motion on a solicitor-client basis.

"J. Edgar Sexton"

"I agree

   Marc Noël J.A."

"I agree

   J.D. Denis Pelletier J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-334-06

APPEAL FROM A JUDGMENT OF THE FEDERAL COURT DATED JULY 12, 2006, FILE NO. T-1309-05

STYLE OF CAUSE:                                                              Tomasz Winnicki v. Canadian Human Rights Commission

PLACE OF HEARING:                                                        Ottawa, Ontario

DATE OF HEARING:                                                          January 16, 2007

REASONS FOR ORDER BY:                                             Sexton J.A.     

CONCURRED IN BY:                                                         Noël J.A.

                                                                                                Pelletier J.A.    

DATED:                                                                                 January 17, 2006         

APPEARANCES:

SOLICITORS OF RECORD: