Zündel v. Canada (Attorney General) et al., (1999) 170 F.T.R. 194 (TD)

Judge:Evans, J.
Court:Federal Court
Case Date:March 10, 1999
Jurisdiction:Canada (Federal)
Citations:(1999), 170 F.T.R. 194 (TD)
 
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Zündel v. Can. (A.G.) (1999), 170 F.T.R. 194 (TD)

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Temp. Cite: [1999] F.T.R. TBEd. JL.064

Ernst Zündel (applicant) v. The Attorney General of Canada, Sabina Citron, The Toronto Mayor's Committee on Community and Race Relations (respondents) and 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 (intervenors)

(T-2765-96)

Indexed As: Zündel v. Canada (Attorney General) et al.

Federal Court of Canada

Trial Division

Evans, J.

June 15, 1999.

Summary:

The Canadian Human Rights Commission requested the appointment of the Human Rights Tribunal to inquire into complaints made against Zündel for violating s. 13 of the Canadian Human Rights Act by causing hate messages to be communicated through a computer website known as the "Zündel­site" accessed through the internet. Zündel applied for judicial review, challenging the Commis­sion's decision and the Tribunal's jurisdic­tion to inquire into the complaints.

The Federal Court of Canada, Trial Divi­sion, dismissed the application.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - [See both Administra­tive Law - Topic 2088.1 ].

Administrative Law - Topic 2088.1

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Pre­judgment of matter - The Canadian Human Rights Commission requested the Human Rights Tribunal inquire into a complaint against Zündel regarding hate messages being communi­cated through a website - Zündel applied for judicial review, assert­ing, inter alia, that the Deputy Chief Com­missioner ("De­puty") was biased because she gave two speeches on this topic and later par­ticipated in the Commission's decision - The Feder­al Court of Canada, Trial Divi­sion, held that there was no bias because the Deputy did not have a closed mind when she participated in the Com­mission's decision - It would unduly cur­tail the Commission's responsibility to combat discrimination outside the com­plaints process if members were unable to give speeches without disqualifying them­selves from subsequently participating in a deci­sion on whether a complaint should be referred to a Tribunal or dismissed.

Administrative Law - Topic 2088.1

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Pre­judgment of matter - The Canadian Human Rights Commission requested the appoint­ment of the Human Rights Tribunal to inquire into complaints that Zündel caused hate messages to be communicated through a computer website - Zündel applied for judicial review, asserting, inter alia, that the Deputy Chief Commissioner ("Dep­uty"), who participated in the decision, prejudged the matter - The Federal Court of Canada, Trial Division, held that Zündel had to show that the Deputy had a closed mind when participating in the Commis­sion's decision - The standard of reason­able apprehension of bias was not imposed because: the Commission was not an adjudicative body that determined individu­als' legal rights; the Commission's role regarding complaints under the Act was proactive; the Act required the Commis­sion to foster public understanding of the Act and equality - See paragraphs 17 to 30.

Administrative Law - Topic 2095

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Attitudinal bias - [See both Administra­tive Law - Topic 2088.1 ].

Administrative Law - Topic 3203

Judicial review - General - Matters not subject to review - The Canadian Human Rights Commission requested the appoint­ment of the Human Rights Tribunal to inquire into complaints that Zündel caused hate messages to be communicated through a computer website - Zündel applied for judicial review, asserting, inter alia, that s. 13 of the Canadian Human Rights Act was constitutionally invalid as it violated Zün­del's right to freedom of expression under s. 2(b) of the Charter - The Federal Court of Canada, Trial Division, held that this Charter issue was more appropriately adjudicated before the Tribunal, which had implied statutory authority to determine the issue - The Commission's decision could not be set aside on a Charter ground because the Commission did not have jurisdiction to determine the validity of the enabling legislation's provision - See para­graphs 71 to 78.

Administrative Law - Topic 3203

Judicial review - General - Matters not subject to review - [See both Administra­tive Law - Topic 3348 ].

Administrative Law - Topic 3348

Judicial review - General - Practice - Time for application - The Canadian Human Rights Commission requested the appoint­ment of the Human Rights Tribunal to inquire into complaints that Zündel caused hate messages to be communicated through a computer website - Zündel applied for judicial review, asserting, inter alia, that the court considering the application's prematurity should not justify judicial reluctance to intervene because there was a legal question involving a provision of the enabling statute's interpretation defin­ing the Tribunal's "jurisdiction" - The Federal Court of Canada, Trial Division, held that the Tribunal's determination regarding regulating material available on the internet clearly outweighed Zündel's and the public purse's costs of permitting the administrative process to run its course before the matter was reviewed by the court - See paragraphs 41 to 50.

Administrative Law - Topic 3348

Judicial review - General - Practice - Time for application - The Canadian Human Rights Commission requested the appoint­ment of the Human Rights Tribunal to inquire into complaints that Zündel caused hate messages to be communicated through a computer website - Zündel applied for judicial review, asserting, inter alia, that the application's prematurity did not justify judicial reluctance to intervene because at issue was interpreting an enabling statute's provision that defined the Tribunal's "juris­diction" - The Federal Court of Canada, Trial Division, disagreed with Zündel's argument, stating that: courts no longer regard interpreting statutory provisions defining the regulated conduct as ipso facto "jurisdictional" in nature; the Com­mission's power to refer a complaint to the Tribunal had a significant subjective element; interpreting s. 13(1) was not a "pure question of law"; the Tribunal's decisions were reviewable - See paragraphs 41 to 50.

Administrative Law - Topic 9013

Boards and tribunals - Jurisdiction - Gen­eral - Constitutional questions - [See Ad­ministrative Law - Topic 3203 ].

Administrative Law - Topic 9051

Boards and tribunals - Jurisdiction of particular boards and tribunals - Canadian Human Rights Commission - [See Admin­istrative Law - Topic 3203 ].

Civil Rights - Topic 2

General - Interpretation of human rights legislation - The Canadian Human Rights Commission requested the appointment of the Human Rights Tribunal to inquire into complaints against Zündel regarding caus­ing hate messages to be communicated through a computer website and whether it was contrary to s. 13 of the Canadian Human Rights Act - Zündel applied for judicial review, asserting that, inter alia, his material was not "communicated telephonically" under s. 13(1) of the Act - The Federal Court of Canada, Trial Divi­sion, stated that the Commission's interpre­tation of the word "telephonically" did not lack a rational basis - Whether it was correct in law was not for the court to determine in this application - With a progressive interpretation of the Act, one could conclude that "telephonically" should be construed in light of both the overall purpose of the legislation and the techno­logical developments - See paragraphs 51 to 61.

Civil Rights - Topic 2

General - Interpretation of human rights legislation - The Canadian Human Rights Commission requested the appointment of the Human Rights Tribunal to inquire into complaints against Zündel that he caused hate messages to be communicated through a computer website - Zündel applied for judicial review, asserting that, inter alia, s. 13 of the Canadian Human Rights Act did not permit the Commission and the Tribu­nal to regulate material posted on websites that were located beyond Parliament's geographic reach, when the person in control of the selection and posting of the material was outside Canada - The Federal Court of Canada, Trial Division, held that a person in Canada caused material to be communicated under s. 13 if that person effectively controlled the content of material posted on a website that was maintained from outside Canada - See paragraphs 62 to 65.

Statutes - Topic 1402

Interpretation - Construction where mean­ing is not plain - General principles - Intention of legislature - [See Statutes - Topic 1703 ].

Statutes - Topic 1446

Interpretation - Construction where mean­ing is not plain - Aid or methods to deter­mine meaning - By reference to other provisions in same Act - [See Statutes - Topic 1703 ].

Statutes - Topic 1703

Interpretation - Extrinsic aids - Books and comment - Dictionaries - The Canadian Human Rights Commission requested the appointment of the Human Rights Tribunal to inquire into complaints against Zündel - Zündel applied for judicial review - At issue, inter alia, was the interpretation of s. 13(1) of the Canadian Human Rights Act -The Federal Court of Canada, Trial Divi­sion, stated that "[d]ictionaries, no doubt, still have their place in assisting in the interpretation of statutory language, par­ticularly in identifying the range of mean­ings that words are capable of bearing in the ordinary use of the English language. However, it is a place of diminishing importance, as courts have increasingly sought to attribute meaning to the text of legislation by placing more weight on the statutory context in which the words are used, and the purposes underlying the legislative scheme." - See paragraph 59.

Words and Phrases

Telephonically - The Federal Court of Canada, Trial Division, discussed the meaning of the word "telephonically" as found in s. 13(1) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 - See paragraphs 51 to 61.

Cases Noticed:

Taylor and Western Guard Party v. Cana­dian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 11].

Syndicat des employés de production du Québec et de l'Acadie v. Commission Canadienne des droits de la personne et al., [1989] 2 S.C.R. 879; 100 N.R. 241; 62 D.L.R.(4th) 385, refd to. [para. 17].

Slattery v. Canadian Human Rights Com­mission, [1994] 2 F.C. 574; 73 F.T.R. 161 (T.D.), refd to. [para. 17].

Gale v. Miracle Foot Mart - see Great Atlantic & Pacific Co. of Canada Ltd. v. Human Rights Commission (Ont.).

Great Atlantic & Pacific Co. of Canada Ltd. v. Human Rights Commission (Ont.) (1993), 65 O.A.C. 227; 109 D.L.R.(4th) 214 (Div. Ct.), refd to. [para. 18].

Save Richmond Farmland Society et al. v. Richmond (Township) et al., [1990] 3 S.C.R. 1213; 116 N.R. 68; 52 B.C.L.R.(2d) 145, refd to. [para. 18].

Cooper v. Canadian Human Rights Com­mission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 20].

Zundel v. Canada (Minister of Citizenship and Immigration) et al., [1998] 2 F.C. 233; 221 N.R. 213; 141 F.T.R. 240; 7 Admin. L.R.(3d) 126 (F.C.A.), refd to. [para. 20].

Reimer v. Human Rights Commission (Sask.) (1992), 105 Sask.R. 100; 98 D.L.R.(4th) 51 (C.A.), consd. [para. 21].

Bell Canada v. Communications, Energy and Paperworkers Union of Canada et al. (1997), 127 F.T.R. 44 (T.D.), consd. [para. 21].

Canadian Broadcasting Corp. v. Canadian Human Rights Commission et al. (1993), 71 F.T.R. 214 (T.D.), refd to. [para. 21].

Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, consd. [para. 22].

Smith v. Pickersgill (1970), 14 D.L.R.(3d) 717 (Man. Q.B.), refd to. [para. 36].

Manning (E.A.) Ltd. et al. v. Ontario Securities Commission (1995), 80 O.A.C. 321; 125 D.L.R.(4th) 305 (C.A.), refd to. [para. 40].

Bell Canada v. Communications, Energy and Paper Workers Union of Canada et al., [1999] 1 F.C. 113; 233 N.R. 87 (F.C.A.), refd to. [para. 41].

Bell v. Human Rights Commission (Ont.), [1971] S.C.R. 756, refd to. [para. 43].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237; 97 D.L.R.(3d) 417, refd to. [para. 44].

Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; 149 N.R. 1, refd to. [para. 58].

Craton v. Winnipeg School Division No. 1 and Winnipeg Teachers' Association No. 1 of the Manitoba Teachers' Society, [1985] 2 S.C.R. 150; 61 N.R. 241; 38 Man.R.(2d) 1, refd to. [para. 60].

Action Travail des Femmes v. Canadian National Railway Co. et al., [1987] 1 S.C.R. 1114; 76 N.R. 161; 40 D.L.R.(4th) 193, refd to. [para. 60].

Tétreault-Gadoury v. Canada Employment and Immigration Commission, [1991] 2 S.C.R. 22; 126 N.R. 1; 81 D.L.R.(4th) 358, refd to. [para. 73].

Cooper v. Canadian Human Rights Com­mission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 74].

Statutes Noticed:

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 13 [para. 5].

Authors and Works Noticed:

Gosnell, Chris, Hate Messages on the Internet: A Question of Context (1998), 23 Queen's Law J. 369, pp. 372-382 [para. 54]; 383-387, 389-395 [para. 65].

Newton's Telecom Dictionary, generally [para. 55].

Counsel:

Douglas Christie, for the applicant;

Marlene Thomas and Michael Morris, for the respondent;

Robert Armstrong and Wendy Matheson, for the respondent, Sabina Citron and Canadian Holocaus Remembrance Asso­ciation;

Andrew Weretelnyk, for the respondent, Toronto Mayor's Committee on Com­munity & Race Relations;

René Duval, for the intervenor, Canadian Human Rights Commission.

Solicitors of Record:

Douglas Christie, Victoria, British Colum­bia, for the applicant;

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Toronto, Ontario, for the respondent;

Tory Tory DesLauriers & Binnington, Toronto, Ontario, for the respondent, Sabina Citron & Canadian Holocaus Remembrance Association;

City of Toronto (Legal Department), Toronto, Ontario, for the respondent, Toronto Mayor's Committee on Com­munity & Race Relations;

Canadian Human Rights Commission, Ottawa, Ontario, for the intervenor, Canadian Human Rights Commission.

This application was heard at Toronto, Ontario, on March 10, 1999, before Evans, J., of the Federal Court of Canada, Trial Division, who delivered the following judg­ment on June 15, 1999.

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