Judgments

[2000] 4 F.C. 255

A-258-99

A-269-99

Sabina Citron, Toronto Mayor’s Committee on Community and Race Relations, the Attorney General of Canada, the Canadian Human Rights Commission, Canadian Holocaust Remembrance Association, Simon Wiesenthal Centre, Canadian Jewish Congress and League for Human Rights of B’Nai Brith (Appellants)

v.

Ernst Zündel and Canadian Association for Free Expression Inc. (Respondents)

Indexed as: Zündel v. Canada (Human Rights Commission) (C.A.)

Court of Appeal, Isaac, Robertson and Sexton JJ.A.— Toronto, April 4; Ottawa, May 18, 2000.

Administrative law — Judicial review — Appeal from F.C.T.D. decision allowing applications for judicial review of two evidentiary rulings made by CHRT — Whether applications premature — Rulings made during tribunal’s proceedings should not be challenged until latter completed as applications for judicial review may ultimately be unnecessary — Unnecessary delays, expenses resulting from judicial review of such rulings could bring administration of justice into disrepute — Judicial review of 53 rulings made by tribunal would delay hearing unduly — Word “decision” in Federal Court Act, s. 18.1(2) not referring to every interlocutory decision made by tribunal — Time period prescribed in s. 18.1(2) starts running when final decision rendered.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 13(1).

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(2) (as enacted by S.C. 1990, c. 8, s. 5).

CASES JUDICIALLY CONSIDERED

APPLIED:

Anti-dumping Act (In re) and in re Danmor Shoe Co. Ltd., [1974] 1 F.C. 22 (1974), 1 N.R. 422 (C.A.); R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577; (1991), 83 D.L.R. (4th) 193; 7 C.R. (4th) 117; 128 N.R. 81; Szczecka v. Canada (Minister of Employment and Immigration) (1993), 116 D.L.R. (4th) 333; 25 Imm. L.R. (2d) 70; 170 N.R. 58 (F.C.A.); Howe v. Institute of Chartered Accountants of Ontario (1994), 19 O.R. (3d) 483; 118 D.L.R. (4th) 129; 27 Admin. L.R. (2d) 118; 74 O.A.C. 26 (C.A.); Doman v. British Columbia (Securities Commission), [1995] 10 W.W.R. 649; 10 B.C.L.R. (3d) 295; 34 Admin. L.R. (2d) 102; 9 C.C.L.S. 13; 42 C.P.C. (3d) 156 (B.C.S.C.).

CONSIDERED:

Zündel v. Citron, [2000] 4 F.C. 225(C.A.).

REFERRED TO:

Canada v. Schnurer Estate, [1997] 2 F.C. 545 (1997), 208 N.R. 339 (C.A.); People First of Ontario v. Porter, Regional Coroner Niagara (1992), 6 O.R. (3d) 289; 87 D.L.R. (4th) 765; 54 O.A.C. 187 (C.A.); Pfeiffer v. Canada (Superintendent of Bankruptcy), [1996] 3 F.C. 584 (1996), 42 C.B.R. (3d) 245; 116 F.T.R. 173 (T.D.).

APPEAL from a Trial Division decision ([1999] F.C.J. No. 495 (QL)) allowing applications for judicial review of two evidentiary rulings made by the Canadian Human Rights Tribunal in hearing a complaint against respondent Ernst Zündel. Appeal allowed.

APPEARANCES:

Jane S. Bailey for appellants Sabina Citron and the Canadian Holocaust Remembrance Association.

Andrew A. Weretelnyk for appellant Toronto Mayor’s Committee on Community and Race Relations.

Richard A. Kramer for appellant Attorney General of Canada.

René Duval for appellant Canadian Human Rights Commission.

Robyn M. Bell for appellant Simon Weisenthal Centre.

Joel Richler and Judy Chan for appellant Canadian Jewish Congress.

Marvin Kurz for appellant League for Human Rights of B’Nai Brith.

Douglas H. Christie and Barbara Kulaszka for respondent Ernst Zündel.

Gregory Rhone for respondent Canadian Association for Free Expression Inc.

SOLICITORS OF RECORD:

Torys, Toronto, for appellants Sabina Citron and the Canadian Holocaust Remembrance Association.

City of Toronto, Legal Department, for appellant Toronto Mayor’s Committee on Community and Race Relations.

Deputy Attorney General of Canada for appellant Attorney General of Canada.

Canadian Human Rights Commission, Ottawa, for appellant Canadian Human Rights Commission.

Bennet Jones, Toronto, for appellant Simon Weisenthal Centre.

Blake, Cassels & Graydon, Toronto, for appellant Canadian Jewish Congress.

Dale, Streiman & Kurz for appellant League for Human Rights of B’Nai Brith.

Douglas H. Christie, Victoria, and Barbara Kulaszka, Brighton, Ontario, for respondent Ernst Zündel.

Gregory Rhone, Etobicoke, Ontario, for respondent Canadian Association for Free Expression Inc.

The following are the reasons for judgment rendered in English by

Sexton J.A.:

INTRODUCTION

[1]        This is an appeal from an application for judicial review of two rulings made by the Canadian Human Rights Tribunal in the course of hearing a human rights complaint made against Mr. Zündel. In the first ruling (A-258-99), the Tribunal ruled that counsel for Mr. Zündel could not engage in a certain line of cross-examination. In the second ruling (A-269-99), the Tribunal refused to qualify a witness tendered by Mr. Zündel as an expert witness. The issue in these appeals is whether Mr. Zündel’s applications for judicial review of the Tribunal’s rulings are premature on the basis that the rulings are interlocutory decisions made during the course of the Tribunal’s proceedings. This set of reasons deals with both appeals and a copy will be placed in each file.

BACKGROUND FACTS

[2]        Prior to the time that these applications for judicial review were brought, the Canadian Human Rights Tribunal was inquiring into whether an Internet Web site operated by Mr. Zündel contravened subsection 13(1) of the Canadian Human Rights Act [R.S.C., 1985, c. H-6].

Ruling at issue in A-258-99

[3]        During the hearing, counsel for the Canadian Human Rights Commission called a witness described as “an expert historian in the field of anti-Semitism and Jewish-Christian relations.”[1] During the course of cross-examination of that witness, counsel for Mr. Zündel sought to cross-examine the witness on the “truth” of certain statements found on Mr. Zündel’s Web site, which the witness had testified were anti-Semitic.

[4]        Counsel for the Canadian Human Rights Commission objected to the line of questioning, arguing that the so-called “truth” of the statements was irrelevant, since truth was not a defence to the subsection 13(1) complaint at issue before the Tribunal.

[5]        The Tribunal accepted the Commission’s arguments. It held that “questions as to the truth or falsity of the statements found on the Zündel site [i.e. the Web site at issue] add nothing to our ability to determine the issues before us, and potentially will add a significant dimension of delay, cost and affront to the dignity of those who are alleged to have been victimized by these statements.”[2]

Ruling at issue in A-269-99

[6]        In its second ruling, the Tribunal was asked to qualify a witness tendered by Mr. Zündel as an expert. It declined to do so, holding that an expert witness “must be capable of giving an objective, disinterested and unbiased opinion.”[3] The Tribunal held that the witness tendered by Mr. Zündel was not capable of doing so, since it considered his views on anti-Semitism to be “so extreme as to render his opinion well beyond the impartial and objective standard required of an expert.”[4] The Tribunal added that the witness did “not bear any of the essential indicia of an expert in the subject area.”[5]

[7]        Mr. Zündel applied to the Federal Court—Trial Division for judicial review of the Tribunal’s two rulings.

THE FEDERAL COURT—TRIAL DIVISION’S DECISION

[8]        In short reasons, the Motions Judge held that he was satisfied that “special circumstances exist to hear the present judicial review applications which are with respect to interlocutory evidentiary decisions.”[6] He held that because he had concluded in a related application for judicial review that one of the members who had participated in the two evidentiary rulings was subject to a reasonable apprehension of bias, the two rulings should be quashed.

ANALYSIS

[9]        In a related appeal (A-253-99) [Zündel v. Citron, [2000] 4 F.C. 225(C.A.)], I have concluded that the member who participated in the two evidentiary rulings at issue in this appeal is not subject to a reasonable apprehension of bias. Accordingly, I disagree with the Motion Judge’s reasons for allowing Mr. Zündel’s applications for judicial review in these matters. Consequently, the interlocutory rulings must be dealt with on an alternative ground.

[10]      Are the applications for judicial review premature? As a general rule, absent jurisdictional issues, rulings made during the course of a tribunal’s proceeding should not be challenged until the tribunal’s proceedings have been completed. The rationale for this rule is that such applications for judicial review may ultimately be totally unnecessary: a complaining party may be successful in the end result, making the applications for judicial review of no value. Also, the unnecessary delays and expenses associated with such appeals can bring the administration of justice into disrepute. For example, in the proceedings at issue in this appeal, the Tribunal made some 53 rulings. If each and every one of the rulings was challenged by way of judicial review, the hearing would be delayed for an unconscionably long period. As this Court held in Anti-dumping Act (In re) and in re Danmor Shoe Co. Ltd.,[7] “a right, vested in a party who is reluctant to have the tribunal finish its job, to have the Court review separately each position taken, or ruling made, by a tribunal in the course of a long hearing would, in effect, be a right vested in such a party to frustrate the work of the tribunal.”[8]

[11]      This rule has been reaffirmed by many courts. Although her remarks were made in the context of criminal proceedings, I think McLachlin J.’s remarks in R. v. Seaboyer; R. v. Gayme[9] are apposite here:

… I would associate myself with the view that appeals from rulings on preliminary enquiries ought to be discouraged. While the law must afford a remedy where one is needed, the remedy should, in general, be accorded within the normal procedural context in which an issue arises, namely the trial. Such restraint will prevent a plethora of interlocutory appeals and the delays which inevitably flow from them. It will also permit a fuller view of the issue by the reviewing courts, which will have the benefit of a more complete picture of the evidence and the case.[10]

[12]      In Szczecka v. Canada (Minister of Employment and Immigration),[11] Létourneau J.A. held:

… unless there are special circumstances there should not be any appeal or immediate judicial review of an interlocutory judgment. Similarly, there will not be any basis for judicial review, especially immediate review, when at the end of the proceedings some other appropriate remedy exists. These rules have been applied in several court decisions specifically in order to avoid breaking up cases and the resulting delays and expenses which interfere with the sound administration of justice and ultimately bring it into disrepute.[12]

[13]      Similarly, in Howe v. Institute of Chartered Accountants of Ontario,[13] the Ontario Court of Appeal held that it was “trite law that the court will only interfere with a preliminary ruling made by an administrative tribunal where the tribunal never had jurisdiction or has irretrievably lost it.”[14]

[14]      Notwithstanding the general rule, counsel for Mr. Zündel argued that the two rulings made by the Tribunal constituted “special circumstances” that warranted immediate judicial review. He argued that the Tribunal’s rulings were so significant that they went to the Tribunal’s very jurisdiction.

[15]      I disagree. The rulings at issue in these appeals are mere evidentiary rulings made during the course of a hearing. Such rulings are made constantly by trial courts and tribunals and if interlocutory appeals were allowed from such rulings, justice could be delayed indefinitely. Matters like bias and a tribunal’s jurisdiction to determine constitutional questions or to make declaratory judgments have been held to go to the very jurisdiction of a tribunal and have therefore constituted special circumstances that warranted immediate judicial review of a tribunal’s interlocutory decision.[15] By contrast, rulings made by a coroner refusing to permit certain questions to be asked have been considered not to result in the loss of jurisdiction sufficient to warrant immediate judicial review of an interlocutory decision.[16] Similarly, in Doman v. British Columbia (Securities Commission),[17] Huddart J. (as she then was) held that “[t]he fact that an evidentiary ruling may give rise to a breach of natural justice is not sufficient reason for a court to intervene in the hearing process.”[18] Huddart J. added:

I find support for that conclusion in the policy of the appeal courts not to review a judge’s ruling under the Charter made during the course of a trial. Substantive rights are at stake, the trial judge can be wrong, evidence may be inadmissible, the decision may be over-turned, a new trial may be required, but nothing should be allowed to interfere with the trial process, once it has begun.[19]

[16]      In oral argument, counsel for Mr. Zündel argued that had he waited until the Tribunal determined the merits of the complaint, subsection 18.1(2) [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act [R.S.C., 1985, c. F-7] would have deprived him of the ability to seek judicial review of the two rulings at issue in this appeal. Subsection 18.1(2) states:

18.1 …

(2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow.

[17]      In light of my conclusion that each and every ruling made by a tribunal in the course of its proceedings cannot be the subject of an application for judicial review, it follows that the word “decision” contained in subsection 18.1(2) cannot refer to every interlocutory decision a tribunal makes. A party against whom an interlocutory order has been made is not therefore under an obligation to immediately appeal in order to preserve his rights. In my view, the time period prescribed in subsection 18.1(2) of the Federal Court Act does not begin to run until the final decision in the proceedings has been rendered. If the Tribunal’s final decision is appealed, any objection to procedures taken during the hearing of the appeal can be raised at that time.

CONCLUSION

[18]      I would allow the appeal, with costs and set aside the order of the Motions Judge dated April 13, 1999.

Isaac J.A.: I agree.

Robertson J.A.: I agree.

---