Zündel v. Citron et al., (2000) 256 N.R. 201 (FCA)

• Judge: Isaac, Robertson and Sexton, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 18, 2000
• Jurisdiction: Canada (Federal)
• Citations: (2000), 256 N.R. 201 (FCA)

Zündel v. Citron (2000), 256 N.R. 201 (FCA)

MLB headnote and full text

Temp. Cite: [2000] N.R. TBEd. JN.020

Sabina Citron, Toronto Mayor's Committee on Community and Race Relations, the Attorney General of Canada, the Canadian Human Rights Commission, Canadian Holocaust Remembrance Association, Simon Wiesenthal Centre, Canadian Jewish Congress and League for Human Rights of B'Nai Brith (appellants) v. Ernst Zündel and Canadian Association for Free Expression Inc. (respondents)

(A-253-99)

Indexed As: Zündel v. Citron et al.

Federal Court of Appeal

Isaac, Robertson and Sexton, JJ.A.

May 18, 2000.

Summary:

Zündel was found guilty of wilfully pub­lishing false statements denying the Holo­caust. The chair of the Ontario Human Rights Commission ("OHRC") issued a press release regarding the conviction. Com­plainants applied to the Canadian Human Rights Commission (CHRC), asserting that Zündel's website would likely expose people to hatred and they would be identifiable by a prohibited ground of discrimination con­trary to. s. 13(1) of the Canadian Human Rights Act. Zündel moved to dismiss the complaint, asserting that there was a rea­sonable apprehension of bias because a CHRC member hearing the complaint was an OHRC member when the statement was issued against him.

The Federal Court of Canada, Trial Di­vision, in a decision reported at 165 F.T.R. 113, held that a reasonable apprehension of bias existed warranting the member's removal from the CHRC, but the other individual sitting on the CHRC was to con­tinue the hearing and determine the com­plaint. The complainant, among others, appealed the decision that the member was subject to a reasonable apprehension of bias. Zündel cross-appealed, asserting that the CHRC proceedings should have been quashed.

The Federal Court of Appeal allowed the complainant's appeal and set aside the de­cision, remitting the matter to the CHRC for completion.

Editor's Note: For related cases see 256 N.R. 125, 179 F.T.R. 261 and 40 N.R. 1; 56 O.A.C. 161; 38 O.A.C. 51; 37 O.A.C. 354; 18 O.A.C. 161; 16 O.A.C. 244.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The chair of the Ontario Human Rights Commission ("OHRC") released statements regarding Zündel's conviction for wilfully publishing false statements denying the Holocaust - Com­plainants applied to the Canadian Human Rights Commission (CHRC), asserting that Zündel's website would likely expose people to hatred or contempt and they would be identifiable by a prohibited ground of discrimination (Canadian Human Rights Act, s. 13(1)) - Zündel moved to dismiss the complaint, asserting that a reasonable apprehension of bias existed because a CHRC member was a former OHRC member when the statement was is­sued - The Federal Court of Canada, Trial Division, held that there was a rea­sonable apprehension of bias by the mem­ber - A complainant, among others, appealed - The Federal Court of Appeal allowed the ap­peal, holding that a rea­sonable apprehen­sion of bias did not exist - See paragraphs 15 to 34.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The chair of the Ontario Human Rights Commission ("OHRC") released statements regarding Zündel's conviction for wilfully publishing false statements denying the Holocaust - Com­plainants applied to the Canadian Human Rights Commission (CHRC), asserting that Zündel's website would likely expose people to hatred or contempt and they would be identifiable by a prohibited ground of discrimination (Canadian Human Rights Act, s. 13(1)) - Zündel moved to dismiss the complaint, asserting that a reasonable apprehension of bias existed because a CHRC member was a former OHRC member when the statement was issued - The Federal Court of Canada, Trial Division, held that there was a rea­sonable apprehension of bias by the mem­ber - A complainant, among others, appealed - The Federal Court of Appeal held that the press release distinguished between the chair's statements and the OHRC's statements - The press release did not address the same issue (being the criminal conviction) as the complaint before the CHRC - See paragraphs 15 to 34.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The chair of the Ontario Human Rights Commission ("OHRC") released statements regarding Zündel's conviction for wilfully publishing false statements denying the Holocaust - Zündel moved to dismiss a complaint to the Ca­nadian Human Rights Commission (CHRC) regarding his website exposing people to hatred - Zündel asserted that a reasonable apprehension of bias existed because a CHRC member was a former OHRC member when the statement was issued - The Federal Court of Canada, Trial Division, held that a reasonable apprehension of bias existed - A com­plainant, among others, appealed - The Federal Court of Appeal allowed the appeal, holding that the lower court erred in, inter alia, not addressing the presump­tion of impartiality and whether the press release demonstrated an objectively justi­fiable disposition - See paragraphs 36 to 39.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The chair of the Ontario Human Rights Commission ("OHRC") released statements regarding Zündel's conviction for wilfully publishing false statements denying the Holocaust - Zündel moved to dismiss a complaint to the Ca­nadian Human Rights Commission (CHRC) regarding his website exposing people to hatred, asserting that a rea­sonable apprehension of bias existed because a CHRC member was a former OHRC member when the statement was issued - The Federal Court of Canada, Trial Division, held that a reasonable apprehension of bias existed - A com­plainant, among others, appealed - The Federal Court of Appeal allowed the appeal, holding that the lower court erred in, inter alia, failing to give the appropriate weight to the passage of time between the press release and the OHRC hearing - See paragraphs 43 to 45.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The chair of the Ontario Human Rights Commission ("OHRC") released statements regarding Zündel's conviction for wilfully publishing false statements denying the Holocaust - Zündel moved to dismiss a complaint to the Ca­nadian Human Rights Commission (CHRC) regarding his website exposing people to hatred - Zündel asserted that a reasonable apprehension of bias existed because a CHRC member was a former OHRC member when the statement was issued - The Federal Court of Canada, Trial Division, held that a reasonable apprehension of bias existed - A com­plainant, among others, appealed - The Federal Court of Appeal allowed the appeal, holding that the lower court erred in, inter alia, concluding that the OHRC was an adjudicative body with no legiti­mate purpose in making the press release - See paragraph 35.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The chair of the Ontario Human Rights Commission ("OHRC") released statements regarding Zündel's conviction for wilfully publishing false statements denying the Holocaust - Zündel moved to dismiss a complaint to the Ca­nadian Human Rights Commission (CHRC) regarding his website exposing people to hatred - Zündel asserted that a reasonable apprehension of bias existed because a CHRC member was a former OHRC member when the statement was issued - The Federal Court of Canada, Trial Division, held that a reasonable apprehension of bias existed - A com­plainant, among others, appealed - The Federal Court of Appeal allowed the appeal, holding that the lower court erred in, inter alia, concluding that a doctrine of "corporate taint" existed (a taint that painted all members of the decision mak­ing body with bias in certain circum­stances) - See paragraphs 46 to 50.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The chair of the Ontario Human Rights Commission ("OHRC") released statements regarding Zündel's conviction for wilfully publishing false statements denying the Holocaust - Zündel moved to dismiss a complaint to the Ca­nadian Human Rights Commission (CHRC) regarding his website exposing people to hatred - Zündel asserted that a reasonable apprehension of bias existed because a CHRC member was a former OHRC member when the statement was issued - The Federal Court of Canada, Trial Division, held that a reasonable apprehension of bias existed - A com­plainant, among others, appealed, asserting, inter alia, that the OHRC was engaged in policy making function when the press release was made, therefore the statements were subject to a much lower standard of impartiality - The Federal Court of Appeal held that the lower court erred in conclud­ing that the OHRC was engaged in an adjudicative role when it issued the press release - However, the court did not agree with the further implications sought to be drawn by the appellants - See paragraphs 51 to 61.

Administrative Law - Topic 2088

Natural justice - Constitution of board or tribunal (considerations incl. bias) - Bias - Apprehension of - The chair of the Ontario Human Rights Commission ("OHRC") released statements regarding Zündel's conviction for wilfully publishing false statements denying the Holocaust - Zündel moved to dismiss a complaint to the Ca­nadian Human Rights Commission (CHRC) regarding his website exposing people to hatred - Zündel asserted that a reasonable apprehension of bias existed because a CHRC member was a former OHRC member when the statement was issued - The Federal Court of Canada, Trial Division, held that a reasonable apprehension of bias existed, however the remaining CHRC member could continue to hear and determine the matter - A com­plainant, among others, appealed - Zündel cross-appealed, asserting that the pro­ceedings should have been quashed - The Federal Court of Appeal held that if it was wrong in holding no reasonable apprehen­sion of bias existed, then the remaining CHRC member should not continue to hear and determine the complaint - See para­graphs 63 to 66.

Administrative Law - Topic 2100.1

Natural justice - Constitution of board or tribunal (considerations incl bias) - Evi­dence and proof - [See second Adminis­trative Law - Topic 2088 ].

Cases Noticed:

R. v. R.D.S., [1997] 3 S.C.R. 484; 218 N.R. 1; 161 N.S.R.(2d) 241; 477 A.P.R. 241; 118 C.C.C.(3d) 353, refd to. [para. 15, footnote 16].

Taylor and Western Guard Party v. Ca­nadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 21, footnote 19].

Dulmage and Sommer v. Police Com­plaints Commissioner (1994), 75 O.A.C. 305; 21 O.R.(3d) 356 (Div. Ct.), dist. [para. 26, footnote 23].

Pinochet, Re, [1998] H.L.J. No. 52 (H.L.), dist. [para. 31, footnote 30].

Pinochet, Re, [1998] H.L.J. No. 41 (H.L.), refd to. [para. 31, footnote 31].

Beno v. Létourneau et al., [1997] 2 F.C. 527; 212 N.R. 357 (F.C.A.), refd to. [para. 37, footnote 41].

Manning (E.A.) Ltd. v. Ontario Securities Commission (1995), 80 O.A.C. 321; 23 O.R.(3d) 257 (C.A.), leave to appeal refused (1995), 193 N.R. 398; 88 O.A.C. 398 (S.C.C.), refd to. [para. 37, footnote 43].

Finch v. Association of Professional En­gineers and Geoscientists (B.C.), [1996] 5 W.W.R. 690; 73 B.C.A.C. 295; 120 W.A.C. 295 (B.C.C.A.), refd to. [para. 37, footnote 45].

Bennett et al. v. British Columbia Securi­ties Commission (1992), 18 B.C.A.C. 191; 31 W.A.C. 191; 69 B.C.L.R.(2d) 171 (C.A.), refd to. [para. 46, footnote 58].

Laws v. Australian Broadcasting Tribunal (1990), 93 A.L.R. 435 (H.C.), not appld. [para. 47, footnote 60].

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. 51, footnote 63].

Counsel:

Jane S. Bailey, for the appellants, Sabina Citron and the Canadian Holocaust Re­membrance Association;

Andrew A. Weretelnyk, for the appellant, Toronto Mayor's Committee on Com­munity and Race Relations;

Richard Kramer, for the appellant, At­torney General of Canada;

René Duval, for the appellant, Canadian Human Rights Commission;

Robyn M. Bell, for the appellant, Simon Weisenthal Centre;

Joel Richler and Judy Chan, for the appel­lant, Canadian Jewish Congress;

Marvin Kurz, for the appellant, League for Human Rights of B'Nai Brith;

Douglas Christie and Barbara Kulaszka, for the respondent, Ernst Zündel;

Gregory Rhone, for the respondent, Ca­nadian Association for Free Expression Inc.

Solicitors of Record:

Tory, Tory DesLauriers & Binnington, Toronto, Ontario, for the appellants, Sabina Citron and the Canadian Holo­caust Remembrance Association;

Andrew A. Weretelnyk, City of Toronto, Legal Department, Toronto, Ontario, for the appellant, Toronto Mayor's Com­mittee on Community and Race Re­lations;

Morris Rosenberg, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the appellant, Attorney General of Canada;

Canadian Human Rights Commission, Ottawa, Ontario, for the appellant, Ca­nadian Human Rights Commission;

Bennett Jones, for the appellant, Simon Weisenthal Centre;

Tory, Tory DesLauriers & Binnington, Toronto, Ontario, for the appellant, Ca­nadian Jewish Congress;

Dale Streiman & Kurz, for the appellant, League for Human Rights of B'Nai Brith;

Douglas Christie, Victoria, British Columbia, for the respondent, Ernst Zündel;

Barbara Kulaszka, for the respondent, Ernst Zündel;

Gregory Rhone, Etobicoke, Ontario, for the respondent, Canadian Association for Free Expression Inc.

This appeal was heard on April 4, 2000, in Toronto, Ontario, by Isaac, Robertson and Sexton, JJ.A., of the Federal Court of Ap­peal.

The following judgment was delivered by Sexton, J.A., for the court on May 18, 2000.