Date: 19991216
Dockets: T-190-99
BETWEEN:
ERNST ZÜNDEL
Applicant
- and -
SABINA CITRON, TORONTO MAYOR'S COMMITTEE ON COMMUNITY AND RACE RELATIONS, THE CANADIAN HUMAN RIGHTS COMMISSION, CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION, SIMON WIESENTHAL CENTRE, CANADIAN JEWISH CONGRESS, LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH, CANADIAN ASSOCIATION FOR FREE EXPRESSION
Respondents
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] Mr. Zündel attacks the impartiality of members of a Human Rights Tribunal hearing a complaint against him on the basis that a statutory requirement, providing that they must have "experience, expertise and interest in, and sensitivity to, human rights",
creates an apprehension that they are biased against him. For the reasons which follow, I find that Mr. Zündel"s attack is groundless.1
A. The background
[2] The history relating to the present application is as follows:2
| 1. On November 19, 1996, the Canadian Human Rights Commission made a decision under the Canadian Human Rights Act, 1976-77, c. 33, s. 1 to request the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal to inquire into two complaints laid against the Applicant by the Respondents Sabina Citron and the Toronto Mayor"s Committee on Community and Race Relations under s. 13(1) of the Canadian Human Rights Act . |
| 2. A Human Rights Tribunal was appointed on February 6, 1997 consisting of Claude Pensa, Chairperson, Reva E. Devins, and Professor Harish C. Jain ("the Tribunal") to hear the case, all of whom where members of the Human Rights Tribunal Panel under the Canadian Human Rights Act . |
| 3. The Human Rights Tribunal held its pre-hearing conference in May of 1997 and commenced hearing witnesses on an intermittent basis throughout 1997 and 1998. |
| 4. In the spring of 1998, a new body, the Canadian Human Rights Tribunal, was established under amendments to the Canadian Human Rights Act ("the CHRA")(S.C. 1998, c. 9, s. 27). These amendments came into force by Order-in-Council on June 30, 1998 (PC 1998-1014, June 11, 1998). |
| 5. Respecting the qualification for appointment of any person to the new Canadian Human Rights Tribunal, s. 48.1(2) of the new amendments provides as follows: |
| Persons appointed as members of the Tribunal must have experience, expertise and interest in, and sensitivity to, human rights. |
| 6. Effective June 30, 1998, members Claude Pensa and Reva Devins were appointed to the new Canadian Human Rights Tribunal by Order-in-Council (PC 1998-1198). |
7. Member Harish C. Jain was not appointed to the new Canadian Human Rights Tribunal and, on December 1, 1998, resigned from the Tribunal for personal reasons.
[3] The Applicant argued before the Tribunal for an order quashing the proceedings taken against him on the ground that, because members Pensa and Devins meet the qualifications outlined in s. 48.1(2) of the CHRA, there exists an apprehension of bias on their part.
[4] Applying the correct test for apprehension of bias found by the Supreme Court of Canada in Committee for Justice and Liberty v. National Energy Board (1978), 1 S.C.R. 369, the Tribunal found as follows:
| The question that follows is, what would an informed person, viewing the matter realistically and practically and having thought the matter through, conclude? In our view, section 48.1(2) connotes a standard of qualification consistent with the words used in the section with respect to a specialized area, namely, human rights. There is nothing unique about requiring a certain basis of interest or expertise as a condition of appointment to an administrative tribunal. |
| ... |
| Returning to section 48.1(2), it seems to us the words used should be considered in the context of section 2 of the Act which describes the legislative purpose as being committed to the principle of equal opportunity without being hindered by discriminatory practices. The wording in section 48.1(2) implies experience, expertise and interest in, and sensitivity to human rights not only consistent with the policies in the Act, but human rights in the broadest sense. The selecting of tribunal members with the described qualifications does not, in our view, create a reasonable apprehension of bias considering that the overriding duty placed on members is to strive for fairness and a just result. |
B. The issue
[5] It is agreed that, in reaching decisions, the high standard of impartiality must be met by members of the Canadian Human Rights Tribunal, both before and after the passage of s. 48.1(2) of the CHRA.
[6] Thus, respecting this standard, the question framed by the applicant is as follows:
Do the provisions of s. 48.1(2) of the CHRA raise a reasonable apprehension of bias such as to void the proceedings?
[7] The relevance of this issue has been placed in doubt. The opposing Respondents argue that, as a result of the transitional provisions with respect to the amendments to the CHRA, the qualification requirements of s. 48.1(2) need not be met with respect to the Tribunal members deciding the present case because they acquired their jurisdiction prior to s. 48.1(2) coming into force. 3 Indeed, the Tribunal made this finding.
[8] I agree with the opposing Respondents" argument, but also find that this is not a bar to the Applicant"s attack. The Applicant"s argument does not concern the precise application of s. 48.1(2) of the CHRA to the Tribunal members in the present case. Instead, it concerns the effect that qualifying with the provision has on the issue of apprehension about their impartiality generally. The argument is that, because Tribunal members Pensa and Devins have been appointed to the new Canadian Human Rights Tribunal, and, therefore, have been found to meet the qualifications in s. 48.1(2), their impartiality in the present case comes into question. Thus, I find the Applicant"s question to be relevant.
C. Analysis
[9] As an aspect of the Applicant"s argument concerning the effect of s. 48.1(2) of the CHRA , the Applicant asserts that the provision should be viewed as an element in play in a conflict between group rights protected by the CHRA, and individual rights, such as freedom of speech; that is, having Tribunal members qualified under s. 48.1(2) wrongly supports the former, at the expense of the latter.4
[10] The constitutionality of s. 48.1(2) of the CHRA is not being attacked. This being so, I do not intend to offer any opinion on the viability of this conflict argument.
[11] In answer to the question framed by the Applicant, I generally agree with the Tribunal"s finding. In my opinion, an informed person, while viewing the matter realistically and practically, and having thought the matter through, would conclude that s. 48.1(2) of the CHRA merely expresses what is generally expected of persons who are required to render impartial decisions: a high level of knowledge and understanding about the subject matter being litigated. In my opinion, the informed person would interpret the word "sensitivity" in s. 48.1(2) of the CHRA to mean just that. Therefore, I find the answer to the question is: no.
[12] Accordingly, the application is dismissed.
[13] I award costs against the Applicant in favour of each of the Respondents, with the exception of the Canadian Association for Free Expression.
"Douglas R. Campbell"
Judge
TORONTO, ONTARIO
December 16, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-190-99 |
STYLE OF CAUSE: ERNST ZÜNDEL
- and -
| SABINA CITRON, TORONTO MAYOR'S COMMITTEE ON COMMUNITY AND RACE RELATIONS, THE CANADIAN HUMAN RIGHTS COMMISSION, CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION, SIMON WIESENTHAL CENTRE, CANADIAN JEWISH CONGRESS, LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH, CANADIAN ASSOCIATION FOR FREE EXPRESSION |
| DATE OF HEARING: WEDNESDAY, DECEMBER 15, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER AND ORDER BY: CAMPBELL, J. |
DATED: THURSDAY, DECEMBER 16, 1999
APPEARANCES: Mr. Douglas H. Christie
Ms. B. Kalaszka
For the Applicant
Ms. Robyn M. Bell
For the Respondent
Simon Wiesenthal Centre
Mr. G. Rhone
For the Respondent
| Canadian Association for the Free Expression Inc. |
Mr. D. Pagorski
For the Respondent
| Canadian Human Rights Commission |
Ms. J. Chan
For the Respondent
Canadian Jewish Congress
Mr. A. Weretelnyk
For the Respondent
| Mayor"s Committee on Community and Race Relations |
Ms. Jane Bailey
For the Respondent
Sabina Citron and Canadian
Holocaust Remembrance Assoc.
Mr. R. Kramer
For the Respondent
Attorney General of Canada
SOLICITORS OF RECORD: Douglas H. Christie
Barrister & Solicitor
810 Courtney Street
Victoria, BC
V8W 1C4
Barbara Kulaszka
Barrister & Solicitor
9 Cheer Dr., P.O. Box 1635,
Brighton, ON
K0K 1H0
| For the Applicant |
Tory Tory Deslauriers Binnington
Barristers & Solicitors
Suite 3000, Aetna Tower,
P.O. Box 270
Toronto-Dominion Centre
Toronto, Ontario
M5K 1N2
For the Respondents
Sabina Citron and Canadian
Holocaust Remembrance Assoc.
Solicitors of Record cont"d... City of Toronto
Legal Division, Litigation
100 Queen Street West
City Hall, West Tower, 13th Floor
Toronto, Ontario
M5H 2N2
For the Respondent
| Toronto Mayor"s Committee on Community and Race Relations |
Canadian Human Rights Commission
344 Slater Street, 8th Floor
Ottawa, Ontario
K1A 1E1
For the Respondent
| Canadian Human Rights Commission |
Bennett Jones
Barristers & Solicitors
One First Canadian Place
Suite 3400, P.O. Box 130
Toronto, Ontario
M5X 1A4
For the Respondent
Simon Wiesenthal Centre
Blake, Cassels & Graydon
Barristers & Solicitors
Box 25, Commerce Court West
Toronto, Ontario
M5L 1A9
For the Respondent
Canadian Jewish Congress
Dale, Streiman & Kurz
Barristers & Solicitors
480 Main Street,
Brampton, Ontario
L6V 1P8
For the Respondent
League for Human Rights of
B"nai Brith Canada
Canadian Association for Free Expression
1000 Cedarglen Gate
Mississauga, Ontario
L5C 3Z5
For the Respondent in person
FEDERAL COURT OF CANADA
Date: 19991216
Docket: T-190-99
Between:
| ERNST ZÜNDEL |
Applicant
- and -
| SABINA CITRON, TORONTO MAYOR'S COMMITTEE ON COMMUNITY AND RACE RELATIONS, THE CANADIAN HUMAN RIGHTS COMMISSION, CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION, SIMON WIESENTHAL CENTRE, CANADIAN JEWISH CONGRESS, LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH, CANADIAN ASSOCIATION FOR FREE EXPRESSION |
Respondents
REASONS FOR ORDER
AND ORDER
__________________
1 All Respondents in the present case, with the exception of the Canadian Association for Free Expression, argued for this result. The Canadian Association for Free Expression argued in support of the Applicant"s position. For brevity, the Respondents who opposed the Applicant in the present application will be referred to as the "opposing Respondents".
2 The following précis is adapted from the Applicant"s Application Record, Memorandum of Fact and Law, pp.25 to 27.
3 Subsections 33(1)-(3) of the amending statute (S.C. 1998, c. 9) are transitional provisions which provide:
"33(1) In this section, "commencement" day means the day on which this section comes into force [June 30, 1998].
(2) Subject to subsections 3, 4 and 5, the members of the Human Rights Tribunal Panel cease to hold office on the commencement day.
(3) The members of any Human Rights Tribunal appointed under the Canadian Human Rights Act before the commencement day have jurisdiction with respect to any inquiry into the complaint in respect of which the Human Rights Tribunal was appointed." [Emphasis added]
4 The Canadian Association for Free Expression generally supports the Applicant in the present application, and, in particular, argued this point.