Canadian Human Rights Commission v. Canadian Liberty Net et al., 157 DLR (4th) 385

• Judge: L'Heureux-Dubé, Gonthier, McLachlin, Major and Bastarache, JJ.
• Court: Supreme Court (Canada)
• Case Date: April 09, 1998
• Jurisdiction: Canada (Federal)
• Citations: 157 DLR (4th) 385;[1998] SCJ No 31 (QL);1998 CanLII 818 (SCC);[1998] 1 SCR 626;(1998), 224 N.R. 241 (SCC);31 CHRR 433;[1998] ACS no 31;224 NR 241;50 CRR (2d) 189;6 Admin LR (3d) 1;147 FTR 305

CRHC v. Cdn. Liberty Net (1998), 224 N.R. 241 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [1998] N.R. TBEd. AP.003

Canadian Human Rights Commission (appellant) v. Canadian Liberty Net and Tony McAleer (alias Derek J. Peterson) (respondents)

Canadian Liberty Net and Tony McAleer (alias Derek J. Peterson) (appellants) v. Canadian Human Rights Commission (respondent) and Attorney General of Canada and League for Human Rights of B'Nai Brith Canada (intervenors)

(25228)

Indexed As: Canadian Human Rights Commission v. Canadian Liberty Net et al.

Supreme Court of Canada

L'Heureux-Dubé, Gonthier, McLachlin, Major and Bastarache, JJ.

April 9, 1998.

Summary:

Complaints were filed with the Canadian Human Rights Commission alleging that Canadian Liberty Net operated a telephonic hate message system. The phone line was in McAleer's name (a.k.a. Peterson). The Com­mission appointed a Human Rights Tribunal to hear the complaints. The Commission sought an interlocutory injunction to prevent Canadian Liberty Net and McAleer from communicating hate messages by telephonic means pending the hearing. At issue was whether the court had jurisdiction to grant such an injunction and, if so, whether the injunction should be granted.

The Federal Court of Canada, Trial Di­vision, in a judgment reported 48 F.T.R. 285, held that it had jurisdiction and granted the injunction. Canadian Liberty Net con­tinued to transmit messages from the United States. The Commission applied to have Canadian Liberty Net and McAleer found in contempt of court.

The Federal Court of Canada, Trial Di­vision, in a judgment reported 56 F.T.R. 42, found Canadian Liberty Net and McAleer guilty of contempt. In a separate judgment reported 56 F.T.R. 157, the court sentenced McAleer to two months' imprisonment plus a $2,500 fine or one month's imprisonment in default. The court fined Canadian Liberty Net $5,000. Canadian Liberty Net and McAleer appealed the decisions as to juris­diction, the granting of the injunction and the finding of contempt.

The Federal Court of Appeal, in a judg­ment reported 192 N.R. 298, set aside the injunction, holding that the court lacked jurisdiction to grant it. The Commission appealed the judgment that the court lacked jurisdiction. In a subsequent judgment re­ported 192 N.R. 313, the court affirmed the contempt finding, but reduced McAleer's sentence to the two days served before a stay resulted in his release pending the appeal. Canadian Liberty Net and McAleer appealed the contempt finding.

The Supreme Court of Canada, McLachlin and Major, JJ., dissenting in part, allowed the Commission's appeal, holding that the Federal Court had jurisdiction under s. 44 of the Federal Court Act to grant an injunction restraining speech before a human rights tribunal found a contravention of s. 13(1) of the Human Rights Act. The court affirmed the finding of contempt. The court found it unnecessary to determine whether the grant­ing of the injunction was appropriate, as the parties were guilty of contempt in any event (i.e. mootness). McLachlin and Major, JJ., disagreed with the finding that s. 44 gave the Federal Court jurisdiction to grant the in­junction.

Civil Rights - Topic 7182

Federal or provincial legislation - Reme­dies - Interlocutory injunction - [See Courts - Topic 4034 ].

Contempt - Topic 690

Contempt - What constitutes - Judgments and orders - Injunctions - Disobedience of - Canadian Liberty Net and McAleer oper­ated a telephone message service, whereby callers could listen to messages that were allegedly hateful contrary to s. 13(1) of the Human Rights Act - Complaints were filed with the Canadian Human Rights Commis­sion - The Commission appointed a Human Rights Tribunal to hear the com­plaints - Before the hearing, the Commis­sion obtained an interlocutory injunction restraining further messages pending the Tribunal's hearing - Canadian Liberty Net and McAleer advertised, on the same phone line, that the messages were now available via the United States - The Supreme Court of Canada affirmed that Canadian Liberty Net and McAleer were guilty of contempt for breaching the in­junction - It was no defence to submit that the injunction was made without jurisdic­tion or should not have been made - The injunction was valid unless set aside by judicial process - The court also rejected the submission that the injunction was not breached because it could not restrain conduct outside of Canada - Since the messages were advertised in Canada on the same phone line where the messages pre­viously appeared, there was a sufficient connection with Canada to give the court jurisdiction - See paragraphs 50 to 52.

Contempt - Topic 2647

Defences - Particular defences - Invalidity of order disobeyed - [See Contempt - Topic 690 ].

Courts - Topic 2004

Jurisdiction - Inherent jurisdiction - The Supreme Court of Canada stated that "the doctrine of inherent jurisdiction operates to ensure that having once analyzed the various statutory grants of jurisdiction, there will always be a court which has the power to vindicate a legal right inde­pendent of any statutory grant. The court which benefits from the inherent jurisdic­tion is the court of general jurisdiction, namely, the provincial superior court. The doctrine does not operate to narrowly confine a statutory grant of jurisdiction; indeed, it says nothing about the proper interpretation of such a grant. ... In a fed­eral system, the doctrine of inherent juris­diction does not provide a rationale for narrowly reading federal legislation which confers jurisdiction on the Federal Court" - See paragraph 34.

Courts - Topic 2004

Jurisdiction - Inherent jurisdiction - [See Courts - Topic 4034 ].

Courts - Topic 4005

Federal Court of Canada - Jurisdiction - General - The Supreme Court of Canada restated that the essential requirements for a finding of jurisdiction in the Federal Court were "(1) There must be a statutory grant of jurisdiction by the federal Parlia­ment. (2) There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction. (3) The law on which the case is based must be 'a law of Canada' as the phrase is used in s. 101 of the Constitution Act, 1867." - See paragraph 8.

Courts - Topic 4034

Federal Court of Canada - Jurisdiction - Trial Division - Prerogative relief, injunc­tions, etc. - The Canadian Human Rights Commission appointed a tribunal to hear complaints of telephonic hate messages contrary to s. 13(1) of the Human Rights Act - The originators of the messages challenged the Federal Court's jurisdiction to grant an interlocutory injunction re­straining the messages pending the tribunal hearing (i.e., "free standing injunction") - The Supreme Court of Canada held that although the Federal Court had no implied statutory grant of jurisdiction under the Human Rights Act, the court had jurisdic­tion under s. 44 of the Federal Court Act - Section 44 conferred jurisdiction for injunctive relief "in addition to any other relief that the court may grant" - The court stated that the Federal Court's power of close supervisory jurisdiction over the decisions and operations of the tribunal constituted "other relief" for the purposes of s. 44 - The Federal Court's statutory jurisdiction was concurrent with (not ousted by) the inherent jurisdiction of a provincial superior court to grant the same injunction - See paragraphs 6 to 44.

Injunctions - Topic 301

Jurisdiction - General - [See Courts - Topic 4034 ].

Injunctions - Topic 1604.4

Interlocutory or interim injunctions - Where no action commenced (free standing injunction application) - [See Courts - Topic 4034 ].

Injunctions - Topic 5905

Particular matters - General - To restrain free speech - The Canadian Human Rights Commission appointed a tribunal to hear complaints of telephonic hate messages contrary to s. 13(1) of the Human Rights Act - The originators of the messages challenged the appropriateness of an in­junction, where Federal Court Rule 469(3) required a "case of urgency" - The Supreme Court of Canada held that whether an injunction should have been granted was now moot, so the court need not decide the issue - However, the court stated that the Cyanamid test, even with slight modifications, was inappropriate to cases of free speech - The court stated that where the issue was now moot, it would be inappropriate to speculate on what was the proper test - See paragraphs 44 to 49.

Cases Noticed:

Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. and ITO-International Ter­minal Operators Ltd., [1986] 1 S.C.R. 752; 68 N.R. 241; 28 D.L.R.(4th) 641, refd to. [para. 8].

Brotherhood of Maintenance of Way Employees v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495; 198 N.R. 161; 78 B.C.A.C. 162; 128 W.A.C. 162; 136 D.L.R.(4th) 289, refd to. [para. 9].

Canada v. Rhine, [1980] 2 S.C.R. 442; 34 N.R. 290, refd to. [para. 11].

Taylor and Western Guard Party v. Ca­nadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191; 75 D.L.R.(4th) 577, refd to. [para. 12].

New Brunswick Electric Power Commis­sion v. Maritime Electric Co. and National Energy Board, [1985] 2 F.C. 13; 60 N.R. 203 (F.C.A.), refd to. [para. 15].

Cooper v. Canadian Human Rights Com­mission, [1996] 3 S.C.R. 854; 204 N.R. 1, refd to. [para. 15].

National Bank of Canada v. Granada (1984), 60 N.R. 201 (F.C.A.), refd to. [para. 16].

Natural Law Party of Canada et al. v. Canadian Broadcasting Corp., [1994] 1 F.C. 580; 77 F.T.R. 73 (T.D.), refd to. [para. 16].

Channel Tunnel Group Ltd. et al. v. Balfour Beatty Construction Ltd. et al., [1993] A.C. 334; 152 N.R. 177 (H.L.), refd to. [para. 19].

Siskina (Cargo Owners) v. Distos Com­pania Naviera S.A., [1979] A.C. 210 (H.L.), refd to. [para. 19].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [1989] 1 S.C.R. 322; 92 N.R. 241; 25 F.T.R. 161, refd to. [para. 25].

Roberts v. Canada - see Wewayakum Indian Band v. Canada and Wewayakai Indian Band.

Jabour v. Law Society of British Columbia et al., [1982] 2 S.C.R. 307; 43 N.R. 451, refd to. [para. 25].

Residential Tenancies Act of Ontario, Re, [1981] 1 S.C.R. 714; 37 N.R. 158, refd to. [para. 26].

Court of Unified Criminal Jurisdiction, Re; McEvoy v. New Brunswick (Attorney General) et al., [1983] 1 S.C.R. 704; 48 N.R. 228; 46 N.B.R.(2d) 219; 121 A.P.R. 219, refd to. [para. 26].

MacMillan Bloedel Ltd. v. Simpson et al., [1995] 4 S.C.R. 725; 191 N.R. 260; 68 B.C.A.C. 161; 112 W.A.C. 161, refd to. [para. 26].

Valin v. Langlois (1879), 3 S.C.R. 1, refd to. [para. 26].

Siddall (William) & Sons Fisheries v. Pembina Exploration Canada Ltd., [1989] 1 S.C.R. 206; 92 N.R. 137; 33 O.A.C. 321, refd to. [para. 26].

Board v. Board, [1919] A.C. 956 (P.C.), refd to. [para. 28].

Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; 144 N.R. 327; 59 O.A.C. 241, refd to. [para. 37].

Pringle v. Fraser, [1972] S.C.R. 821, refd to. [para. 37].

American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.), refd to. [para. 45].

Metropolitan Stores (MTS) Ltd. v. Mani­toba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241; 38 D.L.R.(4th) 321, refd to. [para. 45].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241; 111 D.L.R.(4th) 385, refd to. [para. 45].

Herbage v. Pressdram Ltd., [1984] 1 W.L.R. 1160, refd to. [para. 48].

Rapp v. McClelland & Stewart Ltd. (1981), 34 O.R.(2d) 452 (S.C.), refd to. [para. 48].

Champagne v. Collège d'enseignement général et professionel (CEGEP) de Jonquière, [1997] R.J.Q. 2395 (C.A.), refd to. [para. 48].

R. v. Keegstra, [1990] 3 S.C.R. 697; 117 N.R. 1; 114 A.R. 81; 1 C.R.(4th) 129; 77 Alta. L.R.(2d) 193, refd to. [para. 49].

R. v. Libman, [1985] 2 S.C.R. 178; 62 N.R. 161; 12 O.A.C. 33, refd to. [para. 51].

Canadian Union of Public Employees v. Canadian Broadcasting Corp., [1992] 2 F.C. 455; 46 F.T.R. 259 (T.D.), refd to. [para. 66].

Statutes Noticed:

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 2, sect. 13(1), sect. 57, sect. 58(1) [para. 18].

Constitution Act, 1867, sect. 101 [para. 18].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 3, sect. 17(6), sect. 18(1)(a), sect. 18.1(1), sect. 18.1(3) [para. 18]; sect. 23(c) [para. 41]; sect. 25 [paras. 8, 60]; sect. 44 [paras. 18, 65].

Federal Court Rules, rule 469(3) [para. 45].

Law and Equity Act, R.S.B.C. 1979, c. 224, sect. 36 [para. 19].

Authors and Works Noticed:

Bushnell, I., The Federal Court of Canada: A History, 1875-1992 (1997), p. 159 [para. 32].

Cromwell, T.A., Aspects of Constitutional Judicial Review in Canada (1995), 46 S.C.L. Rev. 1027, p. 1030 [para. 37].

Hogg, Peter W., Constitutional Law of Canada (1992) (1997 Looseleaf Ed.), vol. 1, p. 7-15 [para. 27].

Hogg, Peter W., Federalism and the Juris­diction of Canadian Courts (1981), 30 U.N.B.L.J. 9, generally [para. 26].

Laskin, Bora, The British Tradition in Canadian Law (1969), pp. 113, 114 [para. 28].

Sharpe, Robert, Injunctions and Specific Performance (2nd Ed. 1992)(Looseleaf Ed.), pp. 5.2 to 5.4 [para. 48].

Counsel:

William F. Pentney and Eddie Taylor, for the appellant/respondent, Canadian Human Rights Commission;

Douglas H. Christie, for the respon­dents/appellants, Canadian Liberty Net and Tony McAleer (alias Derek J. Peterson);

David Sgayias, Q.C., and Brian Saunders, for the intervenor, Attorney General of Canada;

David Matas, for the intervenor, League for Human Rights of B'Nai Brith Canada.

Solicitors of Record:

William F. Pentney and Eddie Taylor, Ottawa, Ontario, for the appel­lant/respondent, Canadian Human Rights Commission;

Douglas H. Christie, Victoria, B.C., for the respondents/appellants, Canadian Liberty Net and Tony McAleer (alias Derek J. Peterson);

George Thomson, Deputy Attorney Gen­eral of Canada, Ottawa, Ontario, for the intervenor, Attorney General of Canada;

David Matas, Winnipeg, Manitoba, for the intervenor, League for Human Rights of B'Nai Brith Canada.

These appeals were heard on December 10, 1997, before L'Heureux-Dubé, Gonthier, McLachlin, Major and Bastarache, JJ., of the Supreme Court of Canada.

On April 9, 1998, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Bastarache, J. (L'Heureux-Dubé and Gonthier, JJ., concurring) - see para­graphs 1 to 53;

McLachlin and Major, JJ., dissenting in part - see paragraphs 54 to 73.