Date: 19980922
Docket: T-2765-96
BETWEEN:
ERNST ZÜNDEL
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA,
SABINA CITRON and TORONTO MAYOR'S
COMMITTEE ON COMMUNITY AND
RACE RELATIONS
Respondents
- and -
THE CANADIAN HUMAN RIGHTS COMMISSION,
CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION,
LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA,
CANADIAN JEWISH CONGRESS and
SIMON WIESENTHAL CENTRE
Intervenors
REASONS FOR ORDER
EVANS, J.:
[1] The principal motion before me is brought under section 97 of the Federal Court Rules, 1998 by Ms. Sabina Citron, a respondent to an application for judicial review brought by the applicant, Mr. Ernst Zündel. In this motion she seeks to order him to re-attend his cross-examination in order to answer questions, and to comply with requests for production, which he had improperly failed to answer or had taken under advisement during his cross-examination on July 9 and 10, 1998 on an affidavit sworn on February 18, 1997. A list of the questions and requests for production was attached as a Schedule to the notice of motion.
[2] Although neither was represented at the hearing, the Attorney-General of Canada, also named as a respondent, consented to the motion, as did the Canadian Human Rights Commission, an intervenor in the application for judicial review. The applicant appeared at the hearing in person, and his counsel, Mr. Douglas Christie, made written submissions. Counsel for Ms. Citron, Ms. Jane Bailey, also represented the Canadian Holocaust Remembrance Association, another intervenor, and Ms. Naomi Brown, the Toronto Mayor's Committee on Community and Race Relations, another respondent.
[3] In the event that she was successful on the principal motion, the respondent also brought an ancillary motion under section 8(1) of the Federal Court Rules, 1998 for an extension of time for the completion of cross-examination, and the filing of the respondent's supplementary record, set by order of Richard J. (as he then was) on April 28, 1998.
[4] The principal motion arose from an application for judicial review brought by the applicant under s. 18.1 of the Federal Court Act in which he challenges the legality of a reference by the Canadian Human Rights Commission (the Commission) to a panel of the Canadian Human Rights Tribunal (the Tribunal) of a complaint made by the respondent against the applicant. The complaint concerns certain material available on the Internet that is posted on a website, known as the "Zundelsite", which, the applicant alleges, is operated and controlled in California by a Dr. Ingrid Rimland, a citizen of the United States of America. The server for this website is also said to be located in California, where all "Zundelsite" documents are electronically stored. The material available on the website is alleged to include articles, letters and other publications written by Mr. Zündel, who contends that the generally accepted scale and nature of the Holocaust has been greatly exaggerated and misrepresented, largely as a result of Jewish "propaganda".
[5] The respondents had complained to the Commission that Mr. Zündel's conduct with respect to the material available on the "Zundelsite" violated section 13.(1) of the Canadian Human Rights Act. This provides that:
| It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination. |
[6] It can be anticipated that, when the application for judicial review is heard, the applicant will argue inter alia that the Commission had no jurisdiction to refer this complaint to a Tribunal because the material in question was available from a website operated and controlled by a person outside Canada. Accordingly, while some of the applicant's writings may have been read by persons visiting the "Zundelsite", they were already in the public domain in "hard copy", and it was not within the ability of the applicant to prevent any further publicity that they were given by Dr. Rimland, the "webmaster" of the "Zundelsite" or, for that matter, by anyone else. The application will also no doubt raise some of the legal implications of internet communication.
[7] Thus, for the applicant the key question is whether he controls what material is posted on the website. The respondent, however, frames the relevant legal question somewhat differently by emphasising that s. 13.(1) makes it a discriminatory practice for a person or a group of persons to "communicate telephonically or "to cause to be so communicated, repeatedly in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament..."(emphasis added). It is not, of course, the function of the Court on this motion to decide which of these formulations of the issues, to the extent that they differ, will carry the day when the application for judicial review is heard.
[8] The test for determining what questions a person can be required to answer in cross-examination on an affidavit is well settled and is not disputed by the parties in this motion. An authoritative version of it was relied on by Rothstein J. in Merck Frosst Canada Inc. et al v. Canada (Minister of Health and Welfare) et al (1994), 75 F.T.R. 97, 99, where he said:
| [14] In Superior Discount Ltd. v. N. Perimutter & Co. et al., [1951] O.W.N. 897 (H.C. Master), Senior Master Marriott set out the necessary requirements in order to make a question asked on a cross-examination on an affidavit a proper one. At p. 898, the Senior Master stated: |
| "(1) It must be relevant to the issue in respect of which the affidavit is filed or to the credit of the witness, and the fact that it may incidentally disclose evidence of the witness's case is not of itself sufficient to make it inadmissible. |
| "(2) It must be a fair question. |
| "(3) There must be a bona fide intention of directing the question to the issue in the proceeding or to the credibility of the witness." |
[9] In this motion, the principal issue concerns the first of the above elements, namely, the relevance to issues raised by the application for judicial review of the questions that the respondent asks the Court to order the applicant to answer. In addition it was argued that, since the applicant had already been asked some of these questions by counsel for the Commission, it would not be fair to permit the respondent to ask them again, especially since the Commission had not moved to order the applicant to answer them, and a proceeding in this Court citing the applicant for contempt for failing to answer was dismissed by Muldoon J. on January 30, 1998. I am not persuaded by this argument. The contempt citation was dismissed because the Commission had not sought an order from the Court requiring the applicant to answer the questions, and not because the questions were improper. Given that the propriety of the questions put by the Commission has never been determined, I see nothing unfair in the respondent's seeking an order to compel answers from the applicant if the applicant has refused without good reason to answer them.
[10] Most of the respondent's questions and requests can be divided into the following groups.
| Group 1. Questions concerning the authorship of material appearing on the "Zundelsite" |
[11] The applicant had failed to answer a number of questions put to him by the respondent that were intended to establish that the applicant wrote the whole or part of previously published articles and pamphlets, the text of which was also made available on the "Zundelsite". The applicant took the position that these questions were irrelevant to the issues raised in the application for judicial review: on the applicant's interpretation of section 13.(1) of the Canadian Human Rights Act, it is a complete answer for the applicant to establish that he himself posted nothing on the website, which was wholly under the control of Dr. Rimland. Therefore, it is contended, whether or not the website contained the text of an existing publication of which the applicant was the author was legally irrelevant to the disposition of the application for judicial review.
[12] The respondent concedes that the fact that the applicant was the author of a publication that was also available on the website would not be determinative of whether the applicant had breached section 13.(1) by causing the material in question to be communicated by telephonic means. However, counsel for the respondent also maintains that the applicant's authorship of this material is relevant to the way in which she will develop her contention that the applicant communicated or "caused to be communicated" the messages that the Commission has referred to the Tribunal for adjudication.
[13] In my view, a generous view of relevance should be taken at this stage of a proceeding, and that a party may require an affiant to answer questions that are calculated to establish facts that are rationally related to the establishment of the party's case, even though they may not be determinative of any of the issues in dispute in the litigation. Moreover, given the relatively narrow difference that appears to divide the approaches to section 13.(1) taken respectively by the applicant and the respondent, I have considered the issue of relevance from the perspective of the respondent, who is the party seeking answers to questions put in cross-examination.
[14] I agree that there is a rational relationship between the fact that the respondent is seeking to prove by these questions, and facts that are likely to be relevant in determining whether the Commission had jurisdiction to refer this complaint to a Tribunal. In seeking to show that the applicant caused the offending material to be communicated through the website, the respondent will presumably need to establish that the applicant had an involvement with the choice of material made available on the "Zundelsite".
[15] A desire by the applicant to ensure that his writings are given additional publicity through the medium of the internet might be regarded as supplying a motivation for him to be a participant in the activities that culminated in Dr. Rimland's posting of the material on the website. While the fact of authorship may not in itself support the inference that the applicant "caused the material to be communicated", when considered in the light of other evidence about the business relationship and communications between the applicant and Dr. Rimland in connection with the operation of the website, it may have significant probative value of the role that he played in overseeing the dissemination of the material in question.
[16] Accordingly, I have concluded that the applicant must answer questions put by the respondent relating to his authorship of the identified material, subject to the elimination of questions that the applicant has already answered or are repetitive, and to the rewording of some of the questions in order that their meaning be made clear to the applicant.
| Group 2. Questions relating to communications between Dr. Rimland and the applicant with respect to the material posted on the Zundelsite. |
[17] It is the applicant's position in the application for judicial review that the website was created, operated and controlled exclusively by Dr. Rimland, and that he cannot therefore be the subject of a proceeding arising from Dr. Rimland's conduct outside Canada. It will be the respondent's contention, however, that the applicant was the guiding mind behind the website, and that the posting on it of his writings was with his prior approval. While Dr. Rimland may have played a role in the selection and editing of material, and may actually have entered it so that it was available on the "Zundelsite", the applicant actively participated in the non-technical aspects of the operation to such an extent that he could be said to have caused the offending material to be communicated. Evidence of communications between Dr. Rimland and the applicant about the website, and the material to be posted on it, is clearly relevant to a central issue in the application for judicial review.
[18] The respondent's contention seems to me to be clearly correct, and was not seriously disputed by the applicant. The applicant must therefore answer questions relating to his prior approval of material that appears on the website.
| Group 3. Questions relating to the business relationship between Dr. Rimland and the applicant relating to the operation of the Zundelsite. |
[19] It is part of the respondent's case that Dr. Rimland was paid by the applicant through his company, Samistad Publishers Ltd., for operating the website. This fact, if established, would help to support the inference that the applicant was the guiding mind of the "Zundelsite", and therefore could be said to have caused its contents to be communicated.
[20] Following his cross-examination, the applicant produced cheques drawn on Samistad's account, and signed by the applicant, in favour of Dr. Rimland; each of them indicated the services for which Dr. Rimland was being paid, including "editing and writing", "internet advertising and books", and "website, affidavit, travel". However, the descriptions on the cheques were not sufficiently specific to indicate whether they related to the operation of the "Zundelsite". Accordingly, the applicant must produce the ledger sheets from Samistad, starting from the date of the first cheque in favour of Dr. Rimland that the applicant was ordered to produce, insofar as they show payments to Dr. Rimland for services rendered in connection with the "Zundelsite". However, I do not require the applicant to answer a question about his present personal relationship with Dr. Rimland, on the ground that its intrusiveness into an essentially private matter is not justified by its very tangential relevance to issues in dispute in the application for judicial review.
[21] Having found that the applicant is obliged to answer most of the questions contained in the Schedule to the respondent's notice of motion, I also order that the length of time within which Richard J. ordered cross-examination to be completed be extended to allow the applicant to provide answers in writing that he should have given at his cross-examination, and to comply with the other requests contained in the Schedule to my Order.
[22] Since I have not ordered the applicant either to answer all of the questions put by the respondent, or to comply with all her requests, and since answers to the questions will be in writing, I make no order for costs on this motion, or for complying with the Order.
"John M. Evans"
Judge
TORONTO, ONTARIO
September 23, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2765-96
| STYLE OF CAUSE: ERNST ZÜNDEL |
- and -
THE ATTORNEY GENERAL OF CANADA, SABINA CITRON and TORONTO MAYOR'S COMMITTEE ON COMMUNITY AND RACE RELATIONS
- and -
THE CANADIAN HUMAN RIGHTS COMMISSION, CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION, LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA, CANADIAN JEWISH CONGRESS and SIMON WIESENTHAL CENTRE
DATE OF HEARING: THURSDAY, SEPTEMBER 17, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: EVANS, J.
DATED: TUESDAY, SEPTEMBER 22, 1998
APPEARANCES: Mr. Ernst Zündel
For the Applicant
Ms. Jane Bailey
For the Respondent Sabina Citron
For the Intervenor Canadian Holocaust Association
Ms. Naomi Brown
For the Respondent Toronto Mayor's Committee
SOLICITORS OF RECORD: Douglas Christie
810 Courtney St.,
Victoria, BC
V8W 1C4
For the Applicant
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
City of Toronto (Legal Department)
City Hall,
100 Queen St. W.,
Toronto, Ontario M5H 2N2
For the Respondent
Toronto Mayor's Committee on
Community and Race Relations
Senior Counsel
Canadian Human Rights Commission
344 Slater St., Canada Building
8th Floor,
Ottawa, Ontario K1A 1E1
For the Intervenor
Canadian Human Rights Commission
Tory, Tory, DesLauriers & Binnington
Suite 3000, Aetna Tower,
P.O. Box 270,
Stn. Toronto Dominion
Toronto, Ontario M5K 1N2
For the Intervenor
Canadian Holocaust Remembrance
Association
For the Respondent
Sabina Citron
SOLICITORS OF RECORD: Blake, Cassels & Graydon
Commerce Court West,
2800-199 Bay St.,
P.O. Box 25,
Stn. Commerce Court,
Toronto, Ontario M5L 1A9
For the Intervenor
Canadian Jewish Congress
Bennett Jones Verchere
34th Floor,
1 First Canadian Place,
P.O. Box 130,
Stn. 1st Canadian Place,
Toronto, Ontario M5X 1A4
For the Intervenor
Simon Wiesenthal Centre
Dale, Streiman & Kurz
480 Main St. N.,
Brampton, Ontario L6V 1P8
For the Intervenor
League for Human Rights of
B'nai Brith
FEDERAL COURT OF CANADA
Date: 19980819
Docket: IMM-5099-97
Between:
| ERNST ZÜNDEL |
Applicant
- and -
| THE ATTORNEY GENERAL OF |
CANADA, SABINA CITRON and TORONTO MAYOR'S COMMITTEE ON COMMUNITY AND
RACE RELATIONS
Respondents
- and -
THE CANADIAN HUMAN RIGHTS COMMISSION, CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION, LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA, CANADIAN JEWISH CONGRESS and
SIMON WIESENTHAL CENTRE
REASONS FOR ORDER