Boissoin et al. v. Lund et al., 2010 ABQB 123

• Judge: Wilson, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 03, 2009
• Citations: 2010 ABQB 123;(2010), 488 A.R. 41 (QB);2009 ABQB 592

Boissoin v. Lund (2010), 488 A.R. 41 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. DE.037

In The Matter Of The Alberta Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14

And In The Matter Of A Decision Of A Panel Of The Alberta Human Rights And Citizenship Commission In Regards To Complaint No. S.2002/08-0137

Stephen Boissoin and The Concerned Christian Coalition Inc. (appellants) v. Darren Lund (respondent) and The Attorney General of Alberta, Canadian Civil Liberties Association and Canadian Constitution Foundation (intervenors)

(0801 07613; 2009 ABQB 592; 2010 ABQB 123)

Indexed As: Boissoin et al. v. Lund et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Wilson, J.

December 3, 2009 and February 17, 2010.

Summary:

An Alberta Human Rights Panel found that Boissoin and the Concerned Christian Coalition Inc. had, in a letter to the editor of a newspaper, expressed comments likely to expose homosexuals to hatred and/or contempt due to their sexual orientation contrary to s. 3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act. Boissoin and the Coalition appealed.

The Alberta Court of Queen's Bench allowed the appeal. The Panel erred in concluding that the impugned letter violated s. 3(1)(b). The court declined to award Boissoin solicitor and client costs. The court found that he enjoyed only mixed success on many matters arising in the appeal. The court directed that each party bear their own costs.

Civil Rights - Topic 1860.2

Freedom of speech or expression - Limitations on - Hate messages and literature - Section 3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act provided that "No person shall publish ... or cause to be published ... before the public any statement ... that ... is likely to expose a person or a class of persons to hatred or contempt because of the ... sexual orientation ... of that person or class of persons." - The Alberta Court of Queen's Bench stated that s. 3(1)(b) was aimed at prohibiting public statements which were likely to expose a person or class of persons to hatred or contempt because of their sexual orientation - It was directed at eliminating statements which were hateful or contemptuous of a person or class of persons due to their sexual orientation, and which were also likely to cause others to engage in any of the discriminatory practices listed in the Act - Alberta had the lawful authority to regulate discriminatory expression when such expression had effects falling within subject matters over which the province had legislative jurisdiction granted by ss. 92 and 93 of the Constitution Act, 1867 - See paragraphs 24 to 37.

Civil Rights - Topic 1860.2

Freedom of speech or expression - Limitations on - Hate messages and literature - An Alberta Human Rights Panel found that Boissoin and the Concerned Christian Coalition Inc. had, in a letter to the editor of a newspaper, expressed comments likely to expose homosexuals to hatred and/or contempt due to their sexual orientation contrary to s. 3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act - The Alberta Court of Queen's Bench allowed an appeal, concluding that the Panel erred in finding that the impugned letter violated s. 3(1)(b) - It was an unreasonable interpretation of the letter's message to infer some sort of call for discriminatory practices prohibited by the Act - The Panel incorrectly adopted a literal interpretation of s. 3(1)(b) which would prohibit all hateful and contemptuous expression in any public forum and heedless of the required connection or linkage to acts of discrimination listed in the Act - The Panel misinterpreted the "reasonable person's understanding" of the letter's contents by taking irrelevant considerations into account - See paragraphs 59 to 78.

Civil Rights - Topic 1860.2

Freedom of speech or expression - Limitations on - Hate messages and literature - An Alberta Human Rights Panel found that Boissoin and the Concerned Christian Coalition Inc. had, in a letter to the editor of a newspaper, expressed comments likely to expose homosexuals to hatred and/or contempt due to their sexual orientation contrary to s. 3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act - The Alberta Court of Queen's Bench allowed an appeal, concluding that the Panel erred in finding that the impugned letter was hateful and contemptuous of homosexuals and erred by failing to properly conduct the required s. 3(2) balancing act - The words used were not of the extreme nature that the applicable definitions required - The language may have been jarring, offensive, and insulting but it did not go so far as to fall within the prohibited status of "hate" or "contempt" - See paragraphs 79 to 106.

Civil Rights - Topic 7105

Federal, provincial or territorial legislation - Practice - Parties - Lund complained that a letter to the editor of a newspaper expressed comments likely to expose homosexuals to hatred and/or contempt due to their sexual orientation contrary to s. 3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act - The letter was signed by "Rev. Stephen Boissoin, Central Alberta Chairman, Concerned Christian Coalition, Red Deer." - The complaint form filled in and filed by Lund described who was being complained about as "Stephen Boissoin, Executive Director, Concerned Christian Coalition." - The complaint form had space for the complainant to identify a second party to complain about but that space remained empty - The complaint proceeded on the assumption that the Coalition had also been complained about - During the hearing, Boissoin took full responsibility for his letter and swore that no one and no group nor organization directed or requested that he write the letter - He alleged that the Coalition never censured or punished him for the letter but confirmed that his views did not necessarily reflect the views of the Coalition - An Alberta Human Rights Panel found that the Coalition had contravened s. 3 in the same manner as Boissoin had - On appeal, the Alberta Court of Queen's Bench held that there is no evidence that established that the Coalition contravened s. 3(1)(b) of the Act - There was no basis for the Coalition to be a party - The Panel appeared to have worked from the position that Boissoin's fault  automatically became the Coalition's fault, absent evidence to the contrary - This ignored the burden of proof reposing on Lund to establish his case and, worse, imposed a form of reverse onus upon the Coalition - The Panel also failed to explain why Boissoin's unchallenged sworn testimony on this point should be wholly ignored - See paragraphs 127 to 146.

Civil Rights - Topic 7107

Federal, provincial or territorial legislation - Practice - Costs (incl. on appeal) - An Alberta Human Rights Panel found that Boissoin and the Concerned Christian Coalition Inc. had, in a letter to the editor of a newspaper, expressed comments likely to expose homosexuals to hatred and/or contempt due to their sexual orientation contrary to s. 3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act - The finding was set aside on appeal - Boissoin sought solicitor and client costs - He argued, inter alia, that the complaint by Lund, a university professor, was ill conceived and prosecuted and such an order would send a clear message that the human rights process should not be available to private citizens with no personal interest in a case, other than a political cause - Boissoin also complained, inter alia, that he had to endure the costs associated with defending himself before the Panel - The Alberta Court of Queen's Bench held that there was no merit to the request for solicitor-client costs - The court ordered each party to bear their own costs as this case was one of public interest - Alternatively, Boissoin only achieved mixed success on various of the "public interest" issues - See paragraphs 174 to 192.

Civil Rights - Topic 7181

Federal, provincial or territorial legislation - Remedies - General - An Alberta Human Rights Panel found that the appellants had, in a letter to the editor of a newspaper, expressed comments likely to expose homosexuals to hatred and/or contempt due to their sexual orientation contrary to s. 3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act - The Panel imposed several remedies under s. 32 of the Act - On appeal, the Alberta Court of Queen's Bench opined that the Panel's direction to cease and desist the publishing of "disparaging remarks about gays and homosexuals" was beyond the Panel's power - "Disparaging remarks" were not defined by the Panel, but were clearly remarks much less serious than hateful and contemptuous remarks and were quite lawful to make - They were beyond the power of the Act to regulate and the power of the Province to restrain - See paragraph 149.

Civil Rights - Topic 7181

Federal, provincial or territorial legislation - Remedies - General - An Alberta Human Rights Panel found that the appellants had, in a letter to the editor of a newspaper, expressed comments likely to expose homosexuals to hatred and/or contempt due to their sexual orientation contrary to s. 3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act - The Panel imposed several remedies under s. 32 of the Act - On appeal, the Alberta Court of Queen's Bench opined that the Panel's direction to cease and desist "from committing the same or similar contraventions of the Act" was unlawful as "same or similar contraventions" were not defined and left the parties in a state of uncertainty as to what precise speech was proscribed - See paragraph 149.

Civil Rights - Topic 7181

Federal, provincial or territorial legislation - Remedies - General - An Alberta Human Rights Panel found that the appellants had, in a letter to the editor of a newspaper, expressed comments likely to expose homosexuals to hatred and/or contempt due to their sexual orientation contrary to s. 3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act - The Panel imposed several remedies under s. 32 of the Act - On appeal, the Alberta Court of Queen's Bench opined that the Panel's direction to issue a written apology to the complainant, a university professor, was beyond the power of the Panel to order - Lund suffered no loss of any kind - He did not qualify to receive an ordered apology - See paragraph 149.

Civil Rights - Topic 7181

Federal, provincial or territorial legislation - Remedies - General - An Alberta Human Rights Panel found that the appellants had, in a letter to the editor of a newspaper, expressed comments likely to expose homosexuals to hatred and/or contempt due to their sexual orientation contrary to s. 3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act - The Panel imposed several remedies under s. 32 of the Act - On appeal, the Alberta Court of Queen's Bench opined that the Panel's order directing the payment of expenses incurred by a witness called by the complainant failed on the basis that there was no authority in the Act to permit such an order - See paragraph 149.

Civil Rights - Topic 7185

Federal, provincial or territorial legislation - Remedies - Damages - An Alberta Human Rights Panel found that the appellants had, in a letter to the editor of a newspaper, expressed comments likely to expose homosexuals to hatred and/or contempt due to their sexual orientation contrary to s. 3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act - The Panel imposed several remedies under s. 32 of the Act - On appeal, the Alberta Court of Queen's Bench opined that the Panel's direction that the complainant (Lund) be awarded $5,000 in damages failed as there was no evidence that Lund met the criterion of being a person "dealt with contrary to this Act" - Further, Lund's "damages" related to what he described as the retaliatory lawsuit launched by the appellant Boissoin directly related to the complaint - However, Lund advised that the parties agreed to the discontinuance of that lawsuit "without costs" - Parties could not claim for costs and damages in one proceeding relating to costs or damages said to arise in a different proceeding, particularly where costs were abandoned - See paragraph 149.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - At issue was whether a letter to the editor of a newspaper, expressed comments likely to expose homosexuals to hatred and/or contempt due to their sexual orientation contrary to s. 3(1)(b) of the Alberta Human Rights, Citizenship and Multiculturalism Act - The parties agreed that s. 3 infringed the right to freedom of expression (Charter, s. 2(b)) - The Alberta Court of Queen's Bench opined that it continued to be bound by Canada v. Taylor (S.C.C.) and therefore the infringement was justified under s. 1 of the Charter - See paragraphs 117 to 126.

Practice - Topic 7029.5

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Public interest or test case - [See Civil Rights - Topic 7107 ].

Practice - Topic 7030

Costs - Party and party costs - Entitlement to - Where success or fault divided - [See Civil Rights - Topic 7107 ].

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to - Improper, irresponsible or unconscionable conduct - [See Civil Rights - Topic 7107 ].

Cases Noticed:

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 2, footnote 1].

Walsh v. Mobil Oil Canada et al. (2008), 440 A.R. 199; 438 W.A.C. 199; 2008 ABCA 268, refd to. [para. 11, footnote 2].

Elgie v. Workers' Compensation Board Appeals Commission (Alta.) et al. (2009), 464 A.R. 127; 467 W.A.C. 127; 2009 ABCA 277, refd to. [para. 12, footnote 3].

Scowby et al. v. Glendinning et al., [1986] 2 S.C.R. 226; 70 N.R. 241; 51 Sask.R. 208, refd to. [para. 26, footnote 5].

Scowby v. Saskatchewan Board of Inquiry - see Scowby et al. v. Glendinning et al.

Human Rights Commission (Sask.) v. Engineering Students' Society, University of Saskatchewan (1989), 72 Sask.R. 161; 1989 CarswellSask 627 (C.A.), refd to. [para. 30, footnote 12].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 35, footnote 15].

Canada v. Taylor - see Taylor and Western Guard Party v. Canadian Human Rights Commission.

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81; 1 C.R.(4th) 129, refd to. [para. 36, footnote 16].

Kane et al. v. Alberta Report et al. (2001), 291 A.R. 71; 2001 CarswellAlta 1066 (Q.B.), refd to. [para. 39, footnote 19].

Human Rights Commission (Sask.) et al. v. Bell (1994), 120 Sask.R. 122; 68 W.A.C. 122; 1994 CarswellSask 196 (C.A.), refd to. [para. 47, footnote 25].

Owens v. Human Rights Commission (Sask.) et al. (2006), 279 Sask.R. 161; 372 W.A.C. 161; 2006 CarswellSask 217 (C.A.), refd to. [para. 55, footnote 30].

Trinity Western University et al. v. College of Teachers (B.C.) et al., [2001] 1 S.C.R. 772; 269 N.R. 1; 151 B.C.A.C. 161; 249 W.A.C. 161, refd to. [para. 56, footnote 31].

Hutterian Brethren of Wilson Colony et al. v. Alberta (2009), 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 56, footnote 32].

Whatcott v. Human Rights Tribunal (Sask.) et al. (2007), 306 Sask.R. 186; 2007 CarswellSask 836 (Q.B.), refd to. [para. 91, footnote 56].

Dennis et al. v. United States of America (1951), 71 S. Ct. 857 (Sup. Ct.), refd to. [para. 114, footnote 66].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 121, footnote 69].

Société Radio-Canada v. Nouveau-Brunswick (Procureur général) et autres, [1991] 3 S.C.R. 459; 130 N.R. 362; 119 N.B.R.(2d) 271; 300 A.P.R. 271, refd to. [para. 121, footnote 69].

Cherneskey v. Armdale Publishers Ltd. and King, [1979] 1 S.C.R. 1067; 24 N.R. 271, refd to. [para. 121; footnote 70].

Warman v. Canadian Human Rights Commission and Lemire, 2009 CHRT 26, dist. [para. 124].

Human Rights and Citizenship Commission (Alta.) et al. v. Tequila Bar and Grill Ltd. (2009), 470 A.R. 265; 2009 ABQB 226, refd to. [para. 176, footnote 84].

McCarthy v. Calgary Roman Catholic Separate School District No. 1 (No. 1) (1980), 30 A.R. 208 (Q.B.), refd to. [para. 184].

Pauli et al. v. ACE INA Insurance Co. et al. (2004), 346 A.R. 263; 320 W.A.C. 263 (C.A.), refd to. [para. 185].

Statutes Noticed:

Human Rights, Citizenship and Multiculturalism Act, R.S.A. 2000, c. H-14, sect. 3(1)(b) [para. 2].

Authors and Works Noticed:

Tarnopolsky, Walter Surma, and Pentney, William F., Discrimination and the Law (1st Ed.) (2006 Rev. Ed.), vol. 1, p. 3-56.3 [para. 27, footnotes 7, 8].

Counsel:

Gerald D. Chipeur, Q.C., for the appellant;

Patrick Nugent and Jo-Ann Kolmes, for the respondent;

David Kamal, for the intervener, Attorney General of Alberta;

John V. Carpay, for the intervener, Canadian Constitution Foundation;

J.P. Peacock, Q.C., and Janet L. McCready, for the intervener, Canadian Civil Liberties Association.

This appeal was heard on September 16 and 17, 2009, before Wilson, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on December 3, 2009, and memorandum of costs on February 17, 2010.