Date:20001213
Docket:A-388-99
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
MALONE J.A.
BETWEEN:
ERNST ZUNDEL
Appellant
- and -
THE ATTORNEY GENERAL OF CANADA, SABINA CITRON,
THE TORONTO MAYOR'S COMMITTEE ON COMMUNITY AND RACE RELATIONS, THE CANADIAN HUMAN RIGHTS COMMISSION, CANADIAN JEWISH CONGRESS, CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION, SIMON WIESENTHAL CENTRE AND THE LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA
Respondent
Heard at Toronto, Ontario, Monday, December 11, 2000,
Judgment delivered at Toronto, Ontario,
on Wednesday, December 13, 2000
| REASONS FOR JUDGMENT PRONOUNCED BY: NOËL J.A. |
Date: 20001213
Docket: A-388-99
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
MALONE J.A.
BETWEEN:
ERNST ZUNDEL
Appellant
- and -
THE ATTORNEY GENERAL OF CANADA, SABINA CITRON,
THE TORONTO MAYOR'S COMMITTEE ON COMMUNITY AND RACE RELATIONS, THE CANADIAN HUMAN RIGHTS COMMISSION, CANADIAN JEWISH CONGRESS, CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION, SIMON WIESENTHAL CENTRE AND THE LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
| _. This is an appeal from the decision of Evans J.,1in which he dismissed the appellant's application for judicial review of the decision of the Canadian Human Rights Commission (the "Commission") to request the appointment of a Human Rights Tribunal to inquire into complaints against the appellant pursuant to subsection 13(1) of the Human Rights Act.2 |
| _. The case as presented at the hearing of the appeal raises three broad issues: |
| - Whether the motions judge erred in failing to hold that two speeches that Michelle Falardeau-Ramsay had made when she was Deputy Chief Commissioner of the Commission tainted with bias the Commission's subsequent decision, in which she participated, to refer the complaints about the "zündelsite" to a Human Rights Tribunal; |
| - Whether the motions judge erred in applying the standard of rationality to the review of this decision despite the fact that according to the appellant it involved a "pure question of law"; |
| - Whether subsection 13(1) as construed by the Commission infringes the appellant's right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms and whether the motions judge erred in refusing to decide this issue on the basis that it is more appropriately adjudicated at first instances by the Human Rights Tribunal. |
| _. With respect to the first issue, I am of the view that the motions judge applied the proper test (Newfoundland Telephone Co. Ltd. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 63), and that it was open to him to hold that Ms. Falardeau-Ramsay's speeches did not evidence a closed mind. While the segments of the speeches brought to our attention by the appellant did show that Ms. Falardeau-Ramsay had formed views on issues that were relevant to the referral decision, these did not go so far as to show that she could not be brought to a different view on these matters. For instance, with respect to whether subsection 13(1) could be used against someone like the appellant who allegedly controls internet operations based outside Canada she queried: "There is always the question of the application of Canadian law to messages emanating from outside the country."3Furthermore, as discussed in the paragraphs which follow, she was not called upon to decide any of the issues on which she opined. |
| _. With respect to the second issue, the case law demonstrates that legal assumptions made by the Commission in deciding to request the formation of a Tribunal do not amount to decisions as to the state of the law or its impact on those concerned. As was stated in Cooper v. Canada (HRC), [1996] 3 S.C.R. 854 at 891, when deciding whether a complaint should proceed to be inquired into by a tribunal, the Commission performs a screening function somewhat analogous to that of a judge at a preliminary inquiry. It decides none of the issues which underlie its decision to proceed to the next stage; these are left to the Tribunal (see Bell Canada v. Communications, Energy and Paper Workers Union of Canada (C.A.), [1999] 1 F.C. 113 at 137 per Décary J.A.) |
| _. The sole task of the Commission was therefore to determine whether "having regard to all the circumstances of the complaint, an inquiry into the complaint (was) warranted" (subsections 44(3) and 49(1). It follows, in my view, that the motions judge applied the proper standard of review when he concluded at paragraph 49 of his reasons that his intervention would only be justified: |
| ...if I am satisfied that there is no rational basis in law or on the evidence to support the Commission's decision that an inquiry by a Tribunal is warranted in all the circumstances of the complaints. Any more searching examination of the questions of statutory interpretation or application raised by Mr. Zündel should, in my opinion, be deferred until the Tribunal has completed the hearing and rendered a reasoned decision. |
| _. With respect to the constitutional question which the appellant attempted to raise before the motions judge without success, it is sufficient to say for present purposes that the determination sought by the appellant was premature. This is evidenced by the prayer for relief which sought, in part, insofar as this question is concerned: |
| a declaration pursuant to s. 52 of the Constitution Act, 1982, that s. 13(1) of the CHRA violates s. 2(b) of the Charter, should it be determined that s. 13(1) is engaged. |
(My emphasis)
| _. As noted earlier, while the complaints in issue were referred to a Human Rights Tribunal on the assumption that subsection 13(1) extends to the internet communications said to be controlled by the appellant, the Tribunal has yet to pronounce itself on this matter. It follows that subsection 13(1) cannot be said to violate the appellant's section 2(b) rights unless and until it is held to apply to the communications in issue. |
| _. The second aspect of the appellant's constitutional attack is arguably not premature. He asks for: |
| a declaration pursuant to s. 24(1) of the Charter that his s. 2(b) rights have been infringed by the actions of the CHRC. |
Nevertheless, it would not have been open to the motions judge to issue the declaration sought. The Commission, when referring a complaint to a Tribunal makes no decision on the merits. As was the case in Bell Canada (supra), all that was required in the circumstances of this case is a record from which the Commission could validly form an opinion, rightly or wrongly, that there was a reasonable basis for proceeding to the next stage. As this decision disposes of no rights, the appellant's right to freedom of expression cannot be said to be thereby infringed. Having concluded that neither constitutional remedy was available to the appellant in the context of the judicial review which he brought, it is not necessary to express any view on the reasons expressed by the motions judge for declining to deal with these issues (paragraphs 71 to 79).
| _. At the close of her argument, counsel for the appellant raised the issue of systemic bias which she submits taints the decision of the Commission in this instance. The motions judge noted in his reasons (paragraph 7) that this issue was not pressed during the course of the hearing and proceeded to dispose of it summarily. I see no reason to interfere with his conclusion in that regard. |
| _. The appeal will be dismissed with costs. |
"Marc Noël"
J.A.
"I agree
Gilles Létourneau"
"I agree
B. Malone"
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| DOCKET: A-388-99 |
| STYLE OF CAUSE: ERNST ZUNDEL |
Appellant
- and -
| THE ATTORNEY GENERAL OF CANADA, SABINA CITRON, THE TORONTO MAYOR'S COMMITTEE ON COMMUNITY AND RACE RELATIONS, THE CANADIAN HUMAN RIGHTS COMMISSION, CANADIAN JEWISH CONGRESS, CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION, SIMON WIESENTHAL CENTRE AND THE LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA |
Respondent
DATE OF HEARING: MONDAY, DECEMBER11, 2000
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| PRONOUNCED BY: NOËL J.A. |
| DATED: DECEMBER 13, 2000 |
APPEARANCES: Barbara Kulaszka
For the Appellant
Richard Kramer, and
Marlene Thomas
| For the Respondent, Attorney |
| General of Canada |
Wendy Matheson, and
Jane Bailey
| For the Respondents, Sabina Citron and Canadian Holocaust Remembrance |
Association
Robyn Bell
| For the Respondent, Simon Wiesenthal Centre |
Judy Chan
| For the Respondent, Canadian Jewish Congress |
René Duval
| For the Respondent, Canadian Human Rights Commission |
Glenn K. Chu
| For the Respondent, The Toronto Mayor's Committee on Community and Race Relations |
| SOLICITORS OF RECORD: Barbara Kulaszka |
Barrister & Solicitor
P.O. Box 1635
41 Kingsley Avenue
Brighton, Ontario
K0K 1H0
| For the Appellant |
| Morris Rosenberg |
| Deputy Attorney General of Canada |
| For the Respondent, Attorney General of Canada |
Torys
Barristers & Solicitors
Suite 3000
Aetna Tower
P.O. Box 270
Toronto, Ontario
M5K 1N2
| For the Respondents, Sabina Citron and Canadian Holocaust Remembrance Association |
Bennett, Jones, Verchere
Barristers & Solicitors
Suite 3400, 1 First Canadian Place
P.O. Box 130
Toronto, Ontario
M5X 1A4
| For the Respondent, Simon Wiesenthal Centre |
Blake, Cassels & Graydon LLP
Barristers & Solicitors
2800 - 199 Bay Street
P.O. Box 25
Commerce Court West
Toronto, Ontario
M5L 1A9
| For the Respondent, Canadian Jewish Congress |
Canadian Human Rights Commission
344 Slater Street
9 th Floor
Ottawa, Ontario
K1A 1E1
| For the Respondent, Canadian Human Rights Commission |
City of Toronto
Legal Department, City Hall
100 Queen Street West
West Tower, 13th Floor
Toronto, Ontario
M5H 2N2
| For the Respondent, The Toronto Mayor's Committee on Community and Race Relations |
FEDERAL COURT OF APPEAL
Date: 20001213
Docket: A-388-99
BETWEEN:
| ERNST ZUNDEL |
Appellant
- and -
| THE ATTORNEY GENERAL OF CANADA, SABINA CITRON, THE TORONTO MAYOR'S COMMITTEE ON COMMUNITY AND RACE RELATIONS, THE CANADIAN HUMAN RIGHTS COMMISSION, CANADIAN JEWISH CONGRESS, CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION, SIMON WIESENTHAL CENTRE AND THE LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA |
Respondent
| REASONS FOR JUDGMENT |
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