Date: 20001110
Docket: A-215-99
CORAM: STONE J.A.
ISAAC J.A.
SHARLOW J.A.
BETWEEN:
ERNST ZÜNDEL
Appellant
- and -
THE CANADIAN HUMAN RIGHTS COMMISSION,
THE CANADIAN JEWISH CONGRESS,
THE LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA,
SIMON WIESENTHAL CENTRE,
CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION,
SABINA CITRON,
CANADIAN ASSOCIATION FOR FREE EXPRESSION AND
THE TORONTO MAYOR'S COMMITTEE ON COMMUNITY
AND RACE RELATIONS
Respondents
Heard at Toronto, Ontario on Monday, November 6, 2000
Judgment delivered at Toronto, Ontario
on Friday, November 10, 2000
| REASONS FOR JUDGMENT BY: STONE J.A. |
| IN AGREEMENT: SHARLOW J.A. |
Date: 20001110
Docket: A-215-99
CORAM: STONE J.A.
ISAAC J.A.
SHARLOW J.A.
BETWEEN:
ERNST ZÜNDEL
Appellant
- and -
THE CANADIAN HUMAN RIGHTS COMMISSION,
THE CANADIAN JEWISH CONGRESS,
THE LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA,
SIMON WIESENTHAL CENTRE,
CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION,
SABINA CITRON,
CANADIAN ASSOCIATION FOR FREE EXPRESSION AND
THE TORONTO MAYOR'S COMMITTEE ON COMMUNITY
AND RACE RELATIONS
Respondents
REASONS FOR JUDGMENT
STONE J.A.
[1] This is an appeal from an order of the Trial Division dismissing the appellant's application for an order quashing proceedings before a Human Rights Tribunal (the "Tribunal") appointed pursuant to the Canadian Human Rights Act, R.S.C. 1985, c.-H6 as amended (the "Act"), on the ground that the appellant could and, in fact, did waive his right to object to the existence of a reasonable apprehension of bias.
[2] The Tribunal, appointed November 29, 1996, commenced hearing into two complaints laid against the appellant pursuant to section 13 of the Act with respect to the distribution from a website in California that it was alleged carried messages that are likely to expose persons to hatred or contempt. The hearing commenced on May 26, 1997, and, after some interruptions, continued sporadically later in that year and into 1998. On March 31, 1998, the appellant moved the Tribunal to have the complaints dismissed or to stay any further hearing into the complaints on the basis of the decision of McGillis J. in Bell Canada v. Canadian Telephone Employees Association et al. (1998), 143 F.T.R. 241. In that case it was held that the scheme of the Act relating to security of tenure and to financial security weakens the status of a tribunal appointed under the Act to such an extent that it lacks the requisite level of institutional independence. McGillis J. concluded, therefore, that this created a reasonable apprehension of bias.
[3] Applying the principles laid down in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Utilities), [1992] 1 S.C.R. 623, McGillis J. then determined that the proceedings should be quashed. As she put it at paragraph 155:
| [155] In Newfoundland Telephone Co. v. Board of Commissioners of Public Utilities (Nfld.), [1992] 1 S.C.R. 623; 134 N.R. 241; 95 Nfld. & P.E.I.R. 271; 301 A.P.R. 271, the Supreme Court of Canada indicated, in a unanimous decision, that a finding of a reasonable apprehension of bias vitiates the right to a fair hearing. The court stated as follows, at page 645: |
| "The Consequences of a Finding of Bias |
| Everyone appearing before administrative boards is entitled to be treated fairly. It is an independent and unqualified right. As I have stated, it is impossible to have a fair hearing or to have procedural fairness if a reasonable apprehension of bias has been established. If there has been a denial of a right to a fair hearing it cannot be cured by the tribunal's subsequent decision. A decision of a tribunal which denied the parties a fair hearing cannot be simply voidable and rendered valid as a result of the subsequent decision of the tribunal. Procedural fairness is an essential aspect of any hearing before a tribunal. The damage created by apprehension of bias cannot be remedied. The hearing, and any subsequent order resulting from it, is void." |
[4] On April 22, 1998, the Tribunal dismissed appellant's motion of March 31, 1998. That decision was upheld by Reed J. who rejected the appellant's argument that the principles of Newfoundland Telephone Co., supra, had rendered the doctrine of waiver inoperable whenever a reasonable apprehension is found to exist. Moreover, Reed J. found that the appellant had waived his right to object to the hearing continuing. In doing so she relied heavily on this Court's decision in In Re Human Rights Tribunal and Atomic Energy of Canada Ltd., [1986] 1 F.C. 103, leave to appeal dismissed, (1986), 72 N.R. 17n. In a passage quoted by Reed J., MacGuigan J.A. stated, at 112-113 of that case:
| However, even apart from this express waiver, AECL's whole course of conduct before the Tribunal constituted an implied waiver of any assertion of a reasonable apprehension of bias on the part of the Tribunal. The only reasonable course of conduct for a party reasonably apprehensive of bias would be to allege a violation of natural justice at the earliest practicable opportunity. Here, AECL called witnesses, cross-examined the witnesses called by the Commission, made many submissions to the Tribunal, and took proceedings before both the Trial Division and this Court, all without challenge to the independence of the Commission. In short, it participated fully in the hearing, and must therefore be taken impliedly to have waived its right to object. |
| _____At common law, even an implied waiver of objection to an adjudicator at the initial stages is sufficient to invalidate a later objection: Re Thompson and Local 1026 of International Union of Mine, Mill and Smelter Workers et al. (1962), 35 D.L.R. (2d) 333 (Man. C.A.); Rex v. Byles and others; Ex parte Hollidge (1912), 108 L.T. 270 (Eng. K.B.D.); Regina v. Nailsworth Licensing Justices. Ex parte Bird, [1953] 1 W.L.R. 1046 (Eng. Q;B.D.); Bateman v. McKay et al., [1976] 4 W.W.R. 129 (Sask. Q.B.). The principle is stated as follows in Halsbury's, Laws of England (4th ed.), volume 1, paragraph 71, page 87: |
| __The right to impugn proceedings tainted by the participation of an adjudicator disqualified by interest or likelihood of bias may be lost by express or implied waiver of the right to object. There is no waiver or acquiescence unless the party entitled to object to an adjudicator's participation was made fully aware of the nature of the disqualification and had an adequate opportunity of objecting. Once these conditions are present, a party will be deemed to have acquiesced in the participation of a disqualified adjudicator unless he has objected at the earliest practicable opportunity. |
| Cartwright J. put the rule as follows, by way of dicta, in delivering the judgment of the Supreme Court in Ghirardosi v. Minister of Highways for British Columbia, [1966] S.C.R. 367, at page 372: |
| There is no doubt that, generally speaking, an award will not be set aside if the circumstances alleged to disqualify an arbitrator were known to both parties before the arbitration commenced and they proceeded without objection. |
[5] The principal issue in this appeal is whether the doctrine of waiver may be relied upon by the respondents in the face of a finding of reasonable apprehension of bias. The appellant maintains that Newfoundland Telephone Co., supra, has the effect of rendering that doctrine inoperable for the reason that the bias caused the proceedings before the Tribunal to be wholly void and of no effect, leaving no room for a waiver to operate. The appellant further submits that the subsequent decision of the Supreme Court in R. v. Curragh Inc., [1997] 1 S.C.R. 537 lends support for this argument. In that case, the trial judge's words and actions at trial were found to have created a reasonable apprehension of bias which the accused challenged in the courts after a very short delay. La Forest and Cory JJ., for the majority, applied the principles of Newfoundland Telephone Co., supra, in finding that the proceedings were void and of no effect, and (at para. 11) that the accused had acted in a "timely, appropriate and reasonable manner" as is generally required "in order to maintain the integrity of the court's authority".
[6] I am not persuaded that the Newfoundland Telephone Co., supra, has had the effect argued for by the appellant. It should first be noted that no issue of waiver arose in that case. Rather, the objection to the proceedings was clearly raised at the very outset of the hearing. Thus, the Supreme Court had no occasion there to address waiver. Nor does it seem to me that Curragh Inc. supra, assists the appellant on this aspect of the case. While that case determined that the principles of Newfoundland Telephone Co., supra, applied equally in a criminal law context, the availability of waiver was explicitly accepted but found not to be applicable in the circumstances of the case.
[7] As we have seen in Atomic Energy of Canada, supra, MacGuigan J.A. cited common law authority for operation of the waiver doctrine in the administrative law context. The views he so expressed were adopted by Mahoney J.A. in Canada (Human Rights Commission) v. Taylor, [1987] 3 F.C 593 (C.A.), at 599-600, as was indeed noted by Dickson C.J., for the majority on appeal, [1990] 3 S.C.R. 892 at 942-943. Additionally, at 971-972, McLachlin J., writing for the minority, expressly adopted the reasons of MacGuigan J.A. I would note as well that the doctrine of waiver has been applied in two most recent administrative law decisions of this Court: Yassine v. Canada (Minister of Employment and Immigration) (1994) 172 N.R. 308; Suresh v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1026 (Q.L.), at paragraph 7. Reference may also be made to D. Brown and J. Evans, Judicial Review of Administrative Action in Canada (Carswell: Toronto, 1998), vol. 2, at paras. 11:5400, 11:5500 and to de Smith, Woolf and Jowell, Judicial Review of Administrative Action (Smith & Maxwell: London, 1995), 5th ed., at paras 12-036, 12-037.
[8] The appellant further argues that he did not waive his right to object and, indeed, that he did so promptly after the decision in Bell Canada, supra, was handed down. I accept that any waiver to be effective must be made freely and with full knowledge of all the facts relevant to the decision whether to waive or not: Ex parte Pinochet Ugarte (No. 2), [1999], 2 W.L.R. 272 (H.L.). It must be noted in this connection that it was the provisions of the Act itself as they stood at the time the hearing commenced which created the reasonable apprehension of bias, and that nothing prevented the appellant from challenging the validity of the proceedings at the outset on that basis. Bell Canada, supra, changed nothing in this regard and presented the appellant with no new facts. It merely alerted the appellant to the deficiency in the statute. It seems to me, therefore, that this was not a reason for failing to raise the issue of institutional independence at the outset. Instead of doing so, the appellant, who was represented by counsel throughout, proceeded with the hearing before the Tribunal without raising the slightest objection up to the time that he filed the motion of March 31, 1998.
[9] I would dismiss the appeal with costs.
"A. J. Stone"
J.A.
| "I agree" "Julius A. Isaac" |
| "I agree" "Karen R. Sharlow" |
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: ERNST ZÜNDEL |
Appellant
| THE CANADIAN HUMAN RIGHTS COMMISSION, |
| THE CANADIAN JEWISH CONGRESS, |
| THE LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA, SIMON WIESENTHAL CENTRE, |
| CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION, SABINA CITRON, CANADIAN ASSOCIATION FOR FREE EXPRESSION AND |
| THE TORONTO MAYOR'S COMMITTEE ON COMMUNITY AND RACE RELATIONS |
Respondents
| DATE OF HEARING: MONDAY, NOVEMBER 6, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR JUDGMENT BY: STONE J.A. |
| IN AGREEMENT: SHARLOW J.A. |
| DATED: FRIDAY, NOVEMBER 10, 2000 |
| APPEARANCES BY: Mr. Douglas H. Christie and |
For the Appellant
| For the Respondent The Canadian Human Rights Commission |
| For the Respondents The Canadian Jewish Congress and The Toronto Mayor's Committee on Community and Race Relations |
| For the Respondent The League for Human Rights of B'Nai Brith Canada |
Appearances by ...cont'd
| For the Respondent Simon Wiesenthal Centre |
Ms. Wendy Matheson
| For the Respondents Canadian Holocaust Remembrance Association and Sabina Citron |
| For the Respondent Canadian Association for Free Expression |
| SOLICITORS OF RECORD: Douglas H. Christie |
For the Appellant
| Canadian Human Rights Commission |
| 344 Slater Street, Room 907 |
| For the Respondent The Canadian Human Rights Commission |
| P.O. Box 25, Station Commerce Court |
| For the Respondents The Canadian Jewish Congress and The Toronto Mayor's Committee on Community and Race Relations |
Solicitors of Record ...cont'd
| For the Respondent The League for Human Rights of B'Nai Brith Canada |
| 1 First Canadian Place, Suite 3400 |
| P.O. Box 130, Station 1st Can. Pl. |
| For the Respondent Simon Wiesenthal Centre |
Torys
| Suite 3000, Maritime Life Tower |
| TD Centre, P.O. Box 270, Stn. Toronto Dom. |
| For the Respondents Canadian Holocaust Remembrance Association and Sabina Citron |
| Canadian Association for Free Expression Inc. |
| For the Respondent Canadian Association for Free Expression |
FEDERAL COURT OF CANADA
Date: 20001110
Docket: A-215-99
BETWEEN:
Appellant
- and -
| THE CANADIAN HUMAN RIGHTS COMMISSION, THE CANADIAN JEWISH CONGRESS, THE LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA, SIMON WIESENTHAL CENTRE, CANADIAN HOLOCAUST REMEMBRANCE ASSOCIATION, SABINA CITRON, CANADIAN ASSOCIATION FOR FREE EXPRESSION AND THE TORONTO MAYOR'S COMMITTEE ON COMMUNITY AND RACE RELATIONS |
Respondents
REASONS FOR JUDGMENT