Zundel v. the Attorney General of Canada and the Canadian Human Rights Commission

FEDERAL COURT OF CANADA

Date: 19980428

Docket: T-2765-96

BETWEEN:

ERNST ZÜNDEL

Applicant

- and -

THE ATTORNEY GENERAL OF CANADA

Respondent

- and -

THE CANADIAN HUMAN RIGHTS COMMISSION

Intervenor

REASONS FOR ORDER

(Delivered orally from the Bench at Toronto, Ontario

Monday, April 27, 1998)

RICHARD, J.:

[1] On December 17, 1996, the Applicant, Ernst Zundel, filed an Application for judicial review pursuant to Section 18.1 of the Federal Court Act, seeking:

(a) an Order in the nature of certiorari with prohibition in aid, quashing a decision of the Canadian Human Rights Commission under Section 44.3(a) of the Canadian Human Rights Act 1976-77, Chapter 33, Section 1, to request the president of the Human Rights Tribunal to appoint a Human Rights Tribunal to inquire into two complaints laid against the Applicant by Sabina Citron and the Toronto Mayor's Committee on Community & Race Relations, and prohibiting any hearing before the Human Rights Tribunal on the said complaints as beyond the jurisdiction of Section 13.1 of the Act;

(b) relief under Section 24.1 of the Canadian Charter of Rights and Freedoms in the nature of certiorari with prohibition in aid;

(c) an Order for a stay of proceedings pending the determination of this judicial review application, directing a stay of any inquiry by the Human Rights Tribunal under the Act;

(d) a declaration pursuant to Section 24.1 of the Canadian Charter of Rights of Freedoms that the action of the Canadian Human Rights Commission is in contravention of Section 2(b) of the Charter, and not a method prescribed by law pursuant to Section 1 of the Charter, and permanently enjoining any further proceeding about the complaints referred to above; and

(e) a declaration that Section 13.1 of the Act is ultra vires of the Parliament of Canada, pursuant to Section 52 of the Constitution Act,1982 for breach of Section 2(b) of the Charter, if Section 13.1 applies in these circumstances, contrary to the above.

[2] On March 31, 1998, the Applicant brought a motion to stay the hearing before the Tribunal, pending the determination of the judicial review application pursuant to Section 18.2 of the Federal Court Act.

[3] On March 31, 1998, the Applicant brought a motion pursuant to Section 50 of the Federal Court Act for an Order staying any further hearing, based on the decision of this Court in Bell Canada, dated March 23, 1998.

[4] On April 1, 1998, the Respondent, the Attorney General of Canada, brought a motion to stay the judicial review application, pending the Tribunal's hearing.

[5] On April 9, 1998, the Applicant amended his motion to stay by also seeking a declaration under the Charter that the Tribunal proceedings be stayed as an abuse of process; again the Applicant relied on the Bell Canada decision.

[6] Subsequently, the following motions for standing, either as Respondents or as Intervenors, were brought by the following persons or groups: the Toronto Mayor's Committee on Community & Race Relations, The League for Human Rights of B'nai Brith Canada, Sabina Citron and the Canadian Holocaust Remembrance Association, the Canadian Jewish Congress and the Simon Wiesenthal Centre.

[7] Counsel for the applicant for judicial review objects to these applications for standing.

[8] The Respondent, the Attorney General of Canada, and the Intervenor, the Canadian Human Rights Commission, through their counsel, consent to these applications for standing.

[9] Sabina Citron and the Toronto Mayor's Committee are complainants, and the remaining groups were granted interested party status by the Tribunal, pursuant to Section 50 of the Canadian Human Rights Act.

[10] The Applicants who seek to be added as intervenors for the Respondents have actively participated in the proceedings of the Tribunal.

[11] The Federal Court Rules, 1998 came into force on April 25, 1998. Rule 501.(1) provides that the Rules apply to all proceedings, including further steps taken in proceedings that were commenced before the coming into force of these Rules.

[12] Rule 303.(1)(a) of the Federal Court Rules, 1998 provides that an applicant for judicial review shall name as a respondent every person directly affected by the order sought in the application. Former Rule 1602 referred to any person who is adverse in interest to the applicant in the proceedings.

[13] The two complainants clearly come within both of these descriptions and, accordingly, Sabina Citron and the Toronto Mayor's Committee are added as Respondents in this proceeding.

[14] The remaining applicants for standing have shown a strong private interest to support the public interest aspect of the decision under review, and in particular, the motions brought recently by the Applicant for judicial review to stay the Tribunal's proceedings.

[15] Section 18.1 of the Federal Court Act gives the Court the discretion to grant standing, when satisfied that the circumstances of the case and the type of interest the applicants hold justifies status being granted.

[16] Rule 109 of the Federal Court Rules, 1998 provides that the court may grant leave to any person to intervene in a proceeding. In granting leave, the court must give directions regarding the service of documents, and the role of the intervenor.

[17] Counsel for all of the Applicants for standing have stated that they will cooperate to expedite the hearing of any motion, and the hearing of the judicial review application itself, and will avoid any duplication.

[18] I therefore grant leave to the remaining applicants for standing to intervene in this proceeding on the following terms:

(1) They will cooperate to expedite the hearing and avoid duplication;

(2) They must comply with the further Order, to be made by me, concerning the timetable to be followed;

(3) They shall have no right of appeal;

(4) Their written submissions shall be limited to fifteen pages;

(5) Their oral submissions shall be as directed by the judge at the hearing;

(6) They must be prepared to proceed now with the motions brought by the Applicant and the Attorney General of Canada, which have been set down for hearing today by the direction of the acting Associate Chief Justice;

(7) Service of any documents on them shall be made on the solicitors appearing for them in these proceedings;

[19] Finally, the style of cause in this proceeding will be amended accordingly.

"John D. Richard"

Judge

Toronto, Ontario

April 28, 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

- and -

THE CANADIAN HUMAN RIGHTS COMMISSION

DATE OF HEARING: APRIL 27, 1998

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR ORDER BY: RICHARD, J.

DATED: APRIL 28, 1998

APPEARANCES:

Mr. D. H. Christie For the Applicant

Mr. R. Kramer For the Respondent

Mr. R. Duval For the Intervenor

Mr. E. Taylor

Ms. J. Beauchemin

Mr. J. Laskin (For Sabina Citron and the Canadian Holocaust Remembrance Association)

Ms. A. Kanner (For the Simon Wiesenthal Centre)

Mr. R. Kwinter (For Canadian Jewish Congress)

SOLICITORS OF RECORD:

Mr. Douglas H. Christie For the Applicant

Barrister & Solicitor

and Notary Public

810 Courtney Street

Victoria, B.C.

V8W 1C4

Mr. Richard Kramer For the Respondent

Department of Justice Canada

Suite 3400, Box 36

2 First Canadian Place

Toronto, Ontario

M5X 1K6

Canadian Human Rights Commission For the Canadian Human Rights Commission

320 Queen Street

13th Floor, Tower A

Ottawa, Ontario

K1A 1E1

Tory Tory DesLauriers & Binnington For Sabina Citron and the Canadian Holocaust Remembrance Association

Suite 3000 Aetna Tower

P.O. Box 270

Toronto Dominion Centre

Toronto, Ontario

M5K 1N2

Bennett Jones Verchere For the Simon Wiesenthal Centre

3400, 1 First Canadian Place

P.O. Box 130

Toronto, Ontario

M5X 1A4

Blake, Caswell & Graydon For the Canadian Jewish Congress

Box 25, Commerce Court West

Toronto, Ontario

M5L 1A9