Warman v. Canadian Human Rights Commission, (2011) 423 N.R. 120 (FCA)

• Judge: Noël, Dawson and Pelletier, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: September 19, 2011
• Jurisdiction: Canada (Federal)
• Citations: (2011), 423 N.R. 120 (FCA);2011 FCA 297

Warman v. CHRC (2011), 423 N.R. 120 (FCA)

MLB headnote and full text

Temp. Cite: [2011] N.R. TBEd. NO.038

Canadian Human Rights Commission (appellant) v. Richard Warman and Terry Tremaine (respondents)

(A-468-10; 2011 FCA 297)

Indexed As: Warman v. Canadian Human Rights Commission

Federal Court of Appeal

Noël, Dawson and Pelletier, JJ.A.

October 26, 2011.

Summary:

Following a complaint regarding alleged hate messages posted on two websites, a Canadian Human Rights Tribunal issued a cease and desist order against Tremaine in February 2007 and registered the order with the Federal Court. In March 2009, alleging that Tremaine was in contempt of the order, the Canadian Human Rights Commission moved for a show cause order. The motion was supported by an affidavit exhibiting internet downloads from the two websites in 2007, after the cease and desist order had been registered.

The Federal Court, in a decision reported at [2010] F.T.R. Uned. 538, issued a show cause order. The show cause hearing proceeded.

The Federal Court, in a decision reported at (2010), 378 F.T.R. 299, dismissed the contempt charge. The Commission appealed.

The Federal Court of Appeal, Pelletier, J.A., dissenting, allowed the appeal, found Tremaine to be in contempt of the Commission's order and remitted the matter to the Federal Court for sentencing.

Civil Rights - Topic 950.1

Discrimination - Communicating hate messages telephonically (incl. via internet) - General - [See Contempt - Topic 684 ].

Civil Rights - Topic 1169

Discrimination - Remedies - Cease and desist order - [See Contempt - Topic 45 and Contempt - Topic 684 ].

Civil Rights - Topic 7107

Federal, provincial or territorial legislation - Practice - Orders - [See Contempt - Topic 45 ].

Contempt - Topic 45

General - Elements of contempt - Knowledge of court order - Following a complaint regarding alleged hate messages posted on two websites, a Canadian Human Rights Tribunal issued a cease and desist order against Tremaine on February 2, 2007 and registered the order with the Federal Court on February 13, 2007, under s. 57 of the Canadian Human Rights Act - In March 2009, the Canadian Human Rights Commission alleged that Tremaine was in contempt of the order - Harrington, J., dismissed the charge on the basis that, while Tremaine had early knowledge of the order, it was not established that he had knowledge that the order had been registered with the Federal Court until March 2009 at the latest - The Federal Court of Appeal allowed the Commission's appeal, found Tremaine to be in contempt and remitted the matter for sentencing - The issue on appeal turned on the registration provision in s. 57 and whether the order enforced under that authority was the order of the Commission or of the court - The answer was straight forward - The only order being enforced was that of the Commission - No legal principle restricted the use of contempt powers to orders issued by superior courts - Decisions of lower tribunals could be enforced on their own account through contempt proceedings because they were considered by the legislator to be deserving of the respect that the contempt powers were intended to impose - This was what s. 57 achieved - There was no requirement that notice of registration be given - Harrington, J., erred when he held that the deliberate violation of the order could not, in itself, give rise to a finding of contempt - It was clear that Tremaine had "actual personal knowledge" of the order and that he had disobeyed the order "deliberately or wilfully - See paragraphs 32 to 54.

Contempt - Topic 682

What constitutes contempt - Judgments and orders - Requirement of knowledge of court order - [See Contempt - Topic 45 ].

Contempt - Topic 684

What constitutes contempt - Judgments and orders - Disobedience of or non-compliance with - Following a complaint regarding alleged hate messages posted on two websites, a Canadian Human Rights Tribunal issued a cease and desist order against Tremaine on February 2, 2007 and registered the order with the Federal Court on February 13, 2007, under s. 57 of the Canadian Human Rights Act - In March 2009, the Canadian Human Rights Commission alleged that Tremaine was in contempt of the order - Harrington, J., dismissed the charge on the basis that, while Tremaine had early knowledge of the order, it was not established that he had knowledge that the order had been registered with the Federal Court until March 2009 at the latest - Harrington, J., also accepted Tremaine's arguments regarding the vagueness of the order - The Federal Court of Appeal allowed the Commission's appeal, found Tremaine to be in contempt and remitted the matter for sentencing - The court rejected Tremaine's arguments that the order was too vague to require him to remove material that had already been posted on the internet and that the mere uploading of data on a foreign web server did not constitute an act of "communication" - The order could not be dissociated from the Commission's reasons, which made it clear that Tremaine was prohibited from communicating on the internet - The evidence established that Tremaine had placed messages on a website where they could be accessed by like-minded people - Nothing more was required to establish that he had "communicated" as contemplated by s. 13 of the Act - See paragraphs 55 to 61.

Contempt - Topic 2648

Defences - Particular defences - Lack of notice of disobeyed court order - [See Contempt - Topic 45 ].

Words and Phrases

Communicate - The Federal Court of Appeal discussed the meaning of "communicate" as found in s. 13 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 - See paragraphs 56 to 59.

Cases Noticed:

Tremaine v. Warman et al. (2008), 334 F.T.R. 78; 2008 FC 1032, refd to. [para. 8].

Services aux enfants et adultes de Prescott-Russell v. N.G. et al. (2006), 214 O.A.C. 146; 82 O.R.(3d) 686 (C.A.), refd to. [paras. 12, 81].

Prescott-Russell Services for Children and Adults v. G. (N.) et al. - see Services aux enfants et adultes de Prescott-Russell v. N.G. et al.

Bhatnager v. Minister of Employment and Immigration, [1990] 2 S.C.R. 217; 111 N.R. 185, refd to. [para. 14].

Taylor and Western Guard Party v. Canadian Human Rights Commission, [1990] 3 S.C.R. 892; 117 N.R. 191, refd to. [para. 14].

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

Baxter Laboratories of Canada Ltd., Travenol Laboratories Inc. and Baxter Travenol Laboratories Inc. v. Cutter (Canada) Ltd., [1983] 2 S.C.R. 388; 50 N.R. 1, refd to. [para. 27].

Telus Mobility v. Telecommunications Workers Union (2002), 220 F.T.R. 291; 2002 FCT 656, refd to. [para. 28].

R. v. Goldman, [1980] 1 S.C.R. 976; 30 N.R. 453, refd to. [para. 29].

SOCAN Statement of Royalties (Tariff 22, Internet), Re (1999), 1 C.P.R.(4th) 417 (Copyright Bd.), refd to. [para. 29].

Society of Composers, Authors & Music Publishers of Canada v. Canadian Assn. of Internet Providers - see SOCAN Statement of Royalties (Tariff 22, Internet), Re.

United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; 135 N.R. 321; 125 A.R. 241; 14 W.A.C. 241, refd to. [paras. 40, 75].

Ajax & Pickering General Hospital v. Canadian Union of Public Employees (1981), 132 D.L.R.(3d) 270 (Ont. C.A.), refd to. [para. 42].

Skipper Fisheries Ltd. v. Thorbourne et al. (1997), 157 N.S.R.(2d) 241; 462 A.P.R. 241; 145 D.L.R.(4th) 28 (C.A.), refd to. [para. 90].

Peel Financial Holdings Ltd. v. Western Delta Lands Partnership et al. (2003), 188 B.C.A.C. 58; 308 W.A.C. 58; 2003 BCCA 551, refd to. [para. 90].

Statutes Noticed:

Canadian Human Rights Act, R.S.C. 1985, c. H-6, sect. 13 [para. 22]; sect. 57 [para. 19].

Counsel:

Daniel Poulin, for the appellant;

Douglas H. Christie, for the respondent, Terry Tremaine.

Solicitors of Record:

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

Douglas H. Christie, Victoria, British Columbia, for the respondent, Terry Tremaine.

This appeal was heard at Vancouver, British Columbia, on September 19, 2011, by Noël, Dawson and Pelletier, JJ.A., of the Federal Court of Appeal. On October 26, 2011, at Ottawa, Ontario, the court's decision was delivered, including the following opinions:

Noël, J.A. (Dawson, J.A., concurring) - see paragraphs 1 to 61;

Pelletier, J.A., dissenting - see paragraphs 62 to 95.