Judgments

[2000] 4 F.C. 225

A-253-99

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. Citron (C.A.)

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

Administrative law — Judicial review — CHRT panel appointed to hear complaints against respondent Zündel following publication of pamphlet on Web site — Pamphlet, called “Did Six Million Really Die?” same that led to 1988 press release issued by Ontario Human Rights Commission — Ms. Devins, one of CHRT members had been member of Commission applauding verdict when Zündel convicted of publishing false statements denying Holocaust — Zündel seeking to dismiss complaints on basis Ms. Devins subject to reasonable apprehension of bias — Motion dismissed by CHRT — Motions Judge finding reasonable apprehension of bias — Press release not addressing same issue as complaint before CHRT — Number of errors made by Motions Judge — “Corporate taint” doctrine rejected — Motions Judge further erred in holding, if reasonable apprehension of bias existed, CHRT could continue hearing.

Human rights — Zündel convicted of wilfully publishing pamphlet likely to cause injury, mischief to public interest contrary to Criminal Code, s. 177 — Conviction overturned by S.C.C. as Code, s. 177 infringing Charter — CHRT inquiring into complaints Web site operated by Zündel likely to expose people to hatred, contempt contrary to CHRA, s. 13(1) — One of CHRT members had been member of Ontario Human Rights Commission that previously issued press release applauding Zündel’s conviction — Whether subject to reasonable apprehension of bias — Press release not addressing same issue as complaint before CHRT — Related to charge under Criminal Code, s. 177 to which truth defence — CHRA, s. 13 providing no defence, even if discriminatory statement truthful — Impugned statement should not be attributed to member in question.

This was an appeal from a Trial Division decision finding a reasonable apprehension of bias on the part of one member of the Canadian Human Rights Tribunal hearing complaints based on subsection 13(1) of the Canadian Human Rights Act. In May 1988, the respondent, Ernst Zündel, was found guilty of publishing a pamphlet called “Did Six Million Really Die?” that he knew was false or likely to cause injury or mischief to a public interest, contrary to section 177 of the Criminal Code. Two days after the jury had reached its verdict, the Ontario Human Rights Commission issued a press release applauding the verdict. Zündel’s criminal conviction was later overturned by the Supreme Court of Canada on the ground that Code section 177 infringed Charter paragraph 2(b). In 1997, approximately four years after that decision, complaints were laid with the Canadian Human Rights Commission that an Internet Web site operated by Zündel would be likely to expose people to hatred or contempt contrary to subsection 13(1) of the Canadian Human Rights Act. The Canadian Human Rights Tribunal appointed to inquire into the complaints was composed of three persons, one of them being Reva E. Devins who had been a member of the Ontario Human Rights Commission when it issued the press release in 1988. The respondent brought a motion before the Tribunal, seeking to dismiss the subsection 13(1) complaints on the basis that Ms. Devins was subject to a reasonable apprehension of bias. The Tribunal rejected Zündel’s motion, one of the reasons being that it was brought out of time. On judicial review of that decision, the Motions Judge ruled that at the time the statement was made, the members of the Ontario Human Rights Commission held a strong actual bias against Zündel and that a reasonably informed bystander would apprehend that the “extreme impropriety” of the press release would make Ms. Devins subject to a reasonable apprehension of bias. The Motions Judge concluded, however, that, even though Ms. Devins was subject to a reasonable apprehension of bias, the remaining member of the Tribunal could continue to hear and decide the complaint. Two issues were raised on appeal: (1) whether the finding of the Motions Judge that there was a reasonable apprehension of bias on the part of Ms. Devins was unreasonable, based on erroneous considerations, reached on wrong principle or as a result of insufficient weight being given to relevant matters; (2) whether the Motions Judge was correct in holding that, if there was a reasonable apprehension of bias, the Tribunal could continue with the hearing.

Held, the appeal should be allowed and the matter remitted for completion of the hearing.

(1) The test for a reasonable apprehension of bias is “what would an informed person, viewing the matter realistically and practically, and having thought the matter through, conclude”. It contains a two-fold objective element: the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case. The press release draws a distinction between statements made by the Ontario Human Rights Commission, and statements made by its Chair. It was made in response to a criminal charge that did afford a defence of truthfulness under section 177 of the Criminal Code. The statements attributed to the Commission simply criticized Zündel for denying the truthfulness of the Holocaust. Thus, the truth of the statement would provide a complete defence. By contrast, the essence of the complaint before the Canadian Human Rights Tribunal was that certain people were exposed to hatred or contempt. The truth of the statement would provide no defence. Thus, the issue faced by the jury in 1988 was different from that before the Tribunal. The statement contained in the press release that might be material to the subsection 13(1) complaint was attributed to the Chief Commissioner, not to the Commission as a whole. A reasonable and informed observer would not conclude that such statement should be attributed to Ms. Devins.

The Motions Judge made six other errors. First, he failed to take into account the principle that a member of a Tribunal will act fairly and impartially, in the absence of evidence to the contrary. There is a presumption that a decision maker will act impartially. Second, he failed to consider whether the press release demonstrated an objectively justifiable disposition. Third, he failed to properly connect Ms. Devins to the press release. His reasons confused the passage of time with her connection to the press release. There was no evidence that she was aware of it, let alone agreed with its issuance so as to demonstrate actual bias at the time the press release was issued. Fourth, the Motions Judge failed to give appropriate weight to the amount of time that had passed between the date on which the press release was issued and the date Ms. Devins was asked to hear the subsection 13(1) complaints. A period of nine years between those two dates was sufficient to expunge any taint of bias that might have existed by reason of the press release. Fifth, he erred in concluding that the Ontario Human Rights Commission was only an adjudicative body and had no legitimate purpose in issuing the press release. The press release was not “thoroughly inappropriate”; rather, it was consistent with the Commission’s statutory obligation “to forward the policy that the dignity and worth of every person be recognized”. Finally, the Motions Judge erred in concluding that there is a doctrine of corporate “taint” that is said to paint all members of a decision-making body with bias in certain circumstances. An inference could not be drawn that each member of the Ontario Human Rights Commission authorized the entire press release.

(2) The Motions Judge also erred in concluding that, where a reasonable apprehension of bias is proven, the remaining members of the Tribunal could continue to hear and determine the complaint. When the bias allegation was raised, the panel of which Ms. Devins was a member had sat for some 40 days, and had made approximately 53 rulings. Where a member of an administrative tribunal is subject to a reasonable apprehension of bias and a number of serious interlocutory orders have been made over the course of a lengthy hearing, the Tribunal’s proceedings should be quashed in their entirety.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(b).

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

Criminal Code, R.S.C. 1970, c. C-34, s. 177.

Criminal Code, R.S.C., 1985, c. C-46, s. 181.

Human Rights Code, S.O. 1981, c. 53, s. 28.

Police Services Act, R.S.O. 1990, c. P.15.

Public Utilities Act (The), R.S.N. 1970, c. 322, ss. 5, 14, 15, 79, 85.

CASES JUDICIALLY CONSIDERED

APPLIED:

R. v. S. (R.D.), [1997] 3 S.C.R. 484; (1997), 161 N.S.R. (2d) 241; 151 D.L.R. (4th) 193; 1 Admin. L.R. (3d) 74; 118 C.C.C. (3d) 353; 10 C.R. (5th) 1; 218 N.R. 1; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; (1990), 75 D.L.R. (4th) 577; 13 C.H.R.R. D/435; 3 C.R.R. (2d) 116; Beno v. Canada (Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces to Somalia), [1997] 2 F.C. 527 (1997), 146 D.L.R. (4th) 708; 47 Admin. L.R. (2d) 244; 212 N.R. 357 (C.A.); E.A. Manning Ltd. v. Ontario Securities Commission (1995), 23 O.R. (3d) 257; 125 D.L.R. (4th) 305; 32 Admin. L.R. (2d) 1; 7 C.C.L.S. 125; 80 O.A.C. 321 (C.A.); leave to appeal to S.C.C. refused, [1995] 3 S.C.R. vi; Finch v. Assn. of Professional Engineers & Geoscientists (British Columbia), [1996] 5 W.W.R. 690; (1996), 38 Admin. L.R. (2d) 116; 73 B.C.A.C. 295; 18 B.C.L.R. (3d) 361 (B.C.C.A.); Bennett v. British Columbia (Securities Commission) (1992), 94 D.L.R. (4th) 339; [1992] 5 W.W.R. 481; 18 B.C.A.C. 191; 69 B.C.L.R. (2d) 171; 31 W.A.C. 191; Laws v. Australian Broadcasting Tribunal (1990), 93 A.L.R. 435 (H.C.).

DISTINGUISHED:

Dulmage v. Ontario (Police Complaints Commissioner) (1994), 21 O.R. (3d) 356; 120 D.L.R. (4th) 590; 30 Admin. L.R. (2d) 203; 75 O.A.C. 305 (Div. Ct.); Pinochet Ugarte, Re, [1998] H.L.J. No. 52 (QL); Pinochet Ugarte, Re, [1998] H.L.J. No. 41 (QL); Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; (1992), 95 Nfld. & P.E.I.R. 271; 4 Admin. L.R. (2d) 121; 134 N.R. 241.

CONSIDERED:

R. v. Zündel, [1992] 2 S.C.R. 731; (1992), 95 D.L.R. (4th) 202; 75 C.C.C. (3d) 449; 16 C.R. (4th) 1; 140 N.R. 1; 56 O.A.C. 161.

APPEAL from a Trial Division decision ([1999] 3 F.C. 409 (1999), 165 F.T.R. 113) finding a reasonable apprehension of bias on the part of one member of the Canadian Human Rights Tribunal hearing complaints based on subsection 13(1) of the Canadian Human Rights Act. 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 Wiesenthal 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, Toronto, 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 for appellant Canadian Human Rights Commission.

Bennett Jones, Toronto, for appellant Simon Wiesenthal Centre.

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

Dale, Streiman & Kurz, Brampton, Ontario, 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]        Ms. Devins is a member of the Canadian Human Rights Tribunal (the Tribunal) that is hearing a complaint brought against Ernst Zündel. At issue in this appeal is whether Ms. Devins is subject to a reasonable apprehension of bias, stemming from a now twelve-year old press release that was issued by the Ontario Human Rights Commission (the Commission or Ontario Human Rights Commission) when Ms. Devins was a member of that Commission, in which the Commission, among other things, applauded a court ruling that found Mr. Zündel to be guilty of publishing false statements that denied the Holocaust.

BACKGROUND FACTS

[2]        On May 11, 1988, a jury found Mr. Zündel to be guilty of wilfully publishing a pamphlet called “Did Six Million Really Die?” that he knew was false and that causes or is likely to cause injury or mischief to a public interest, contrary to section 177 of the Criminal Code.[1]

[3]        Two days after the jury had reached its verdict, the Ontario Human Rights Commission issued the following press release:

TIME/DATE:         10:32 Eastern Time May 13, 1988

SOURCE:             Ontario Human Rights Commission

HEADLINE:           *** HUMAN RIGHTS COMMISSION COMMENDS RECENT ZÜNDEL RULING ***

PLACELINE:         TORONTO

The Ontario Human Rights Commission commends the recent court ruling that found Ernst Zundel guilty of publishing false statements denying the Holocaust.

“This decision lays to rest, once and for all, the position that is resurrected from time to time that the Holocaust did not happen and is, in fact, a hoax,” said Chief Commissioner, Raj Anand. “We applaud the jury’s decision since it calls for sanctions against a man responsible for contradicting the truth of the suffering experienced by the Jewish people, which was visited upon them solely because of their religion and ethnicity.”

Mr. Anand also stated that the decision is of broader significance in that it affirms not only the rights of Jews, but also of and [sic] other religious and ethnocultural groups to be free from the dissemination of false information that maligns them.

[4]        Mr. Zündel’s criminal conviction was eventually overturned by the Supreme Court of Canada [[1992] 2 S.C.R. 731], which held that section 177 of the Criminal Code[2] was contrary to the right of free expression guaranteed by paragraph 2(b) of the Charter [Canadian Charter of Rights and Freedoms, being part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], and that the infringement could not be saved by section 1 of the Charter.[3]

[5]        Approximately four years after the Supreme Court overturned Mr. Zündel’s conviction, two complainants laid complaints with the Canadian Human Rights Commission. The complainants said that they believed that an Internet Web site operated by Mr. Zündel would be “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,” contrary to subsection 13(1) of the Canadian Human Rights Act.[4] A panel of the Canadian Human Rights Tribunal was appointed to inquire into the complaints. Reva E. Devins was one of three persons appointed to determine the complaint.

[6]        At the inquiry, which commenced on May 26, 1997, the Canadian Human Rights Commission relied heavily on the “Did Six Million Really Die?” pamphlet that had been published on Mr. Zündel’s Web site. This pamphlet was the same one that had led to the earlier criminal charges and to the press release issued by the Ontario Human Rights Commission.

[7]        After approximately forty days of hearings, Mr. Zündel requested that the Tribunal fax him the biographies of the three Tribunal members. Approximately one week after the biographies had been faxed to him, counsel for Mr. Zündel located the press release while searching Quicklaw Systems’ databases. That same day, counsel for Mr. Zündel brought a motion before the Tribunal, seeking to dismiss the subsection 13(1) complaints on the basis that Ms. Devins was subject to a reasonable apprehension of bias.

THE TRIBUNAL’S DECISION

[8]        The Tribunal rejected Mr. Zündel’s motion. It concluded that the press release had been made by the then Chief Commissioner of the Ontario Human Rights Commission, not by the Commission or by Ms. Devins personally. Moreover, the Tribunal added, the statements were arguably within the Chief Commissioner’s statutory mandate. These factors, the Tribunal held, made it difficult to understand how the press release could be said to create a reasonable apprehension of bias on the part of the Chief Commissioner, or that any bias could then be imputed to Ms. Devins. In any event, the Tribunal held that even if Mr. Zündel’s submission had any merit, it held that it was “totally inappropriate at this late state for this matter to be advanced.”[5] The Tribunal reasoned that because the statement had been made long before the hearing had commenced, Mr. Zündel could have raised the bias allegation at the outset of the proceedings. In so doing, the Tribunal implied that Mr. Zündel had waived his right to raise an allegation of reasonable apprehension of bias. Mr. Zündel sought judicial review of the Tribunal’s decision to the Federal Court—Trial Division.

THE FEDERAL COURT—TRIAL DIVISION’S DECISION

[9]        In his decision, the Motions Judge held that the press release was a “gratuitous political statement”[6] that made “a specific damning statement”[7] against Mr. Zündel, which was “thoroughly inappropriate for the Chair of the Ontario Commission”[8] to do. He held that “[a]n institution with adjudicative responsibilities has no legitimate purpose in engaging in such public condemnation.”[9]

[10]      The Motions Judge reasoned that because the press release stated that “the Ontario Human Rights Commission commends the present court ruling,”[10] and that “[w]e applaud the jury’s decision,”[11] the Chair purported to speak on behalf of all members of the Commission, including Ms. Devins. The Motions Judge added that it would be a “reasonable conclusion to reach that at the time the statement was made, the members of the Ontario Commission held a strong actual bias”[12] against Mr. Zündel. Nevertheless, he concluded that by the time the Canadian Human Rights Tribunal was convened to inquire into the subsection 13(1) complaint, there was “insufficient evidence to find present actual bias”[13] against Ms. Devins.

[11]      The Motions Judge concluded that even though the statement was released some ten years before Ms. Devins was called to inquire into the subsection 13(1) complaint brought against Mr. Zündel, a reasonably informed bystander would apprehend that the “extreme impropriety”[14] of the press release would make her subject to a reasonable apprehension of bias.

[12]      The Motions Judge rejected the Tribunal’s decision that Mr. Zündel had waived his right to bring the bias complaint by not bringing it at the outset of the Tribunal’s proceedings. The Motions Judge accepted Mr. Zündel’s evidence that he was not aware of the press release until shortly before the bias allegation was brought.

[13]      Even though he concluded that Ms. Devins was subject to a reasonable apprehension of bias, the Motions Judge declined to prohibit the remaining member of the Tribunal from continuing to hear and to ultimately determine the complaint. He held that because the Canadian Human Rights Act permits one Tribunal member to complete an already commenced hearing where other appointed members are unable to continue,[15] the one remaining member of the panel could continue to hear and decide the complaint.

[14]      Ms. Citron and the other appellants now appeal the Motion Judge’s decision that Ms. Devins was subject to a reasonable apprehension of bias. They have not appealed the Motion Judge’s decision that Mr. Zündel did not waive his right to raise the bias allegation by not bringing it at the outset of the Tribunal’s proceedings. Mr. Zündel has cross-appealed one aspect of the Motion Judge’s decision, arguing that the Motions Judge should have quashed the Tribunal’s proceedings in their entirety.

ISSUES

1. Was the finding of the Motions Judge that there was a reasonable apprehension of bias on the part of Ms. Devins unreasonable, based on erroneous considerations, reached on wrong principle, or reached as a result of insufficient weight having been given to relevant matters?

2. Was the Motions Judge correct in holding that, if there was a reasonable apprehension of bias, the Tribunal could continue with the hearing?

ANALYSIS

1.         THE REASONABLE APPREHENSION OF BIAS TEST

[15]      In R. v. S. (R.D.),[16] Cory J. stated the following manner in which the reasonable apprehension of bias test should be applied:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. … [The] test is “what would an informed person, viewing the matter realistically and practically—and having thought the matter through—conclude ….”[17]

[16]      He held that the test contained a two-fold objective element: “the person considering the alleged bias must be reasonable, and the apprehension of bias itself must also be reasonable in the circumstances of the case.”[18]

Does the press release address the same issue as the complaint before the Canadian Human Rights Tribunal?

[17]      On appeal, Mr. Zündel submits that a reasonable bystander would conclude that the press release, which attributes certain statements directly to the Ontario Human Rights Commission, and not merely to the Chair of that Commission, would cause Ms. Devins (who was a member of the Ontario Human Rights Commission when the press release was issued) to be subject to a reasonable apprehension of bias. Mr. Zündel submits that the criminal charges upon which the press release was based were directly in relation to his publication “Did Six Million Really Die?”, the very same pamphlet that Mr. Zündel had reproduced on his Web site and that led to the subsection 13(1) human rights complaint that Ms. Devins and the other two members of the Tribunal were asked to determine.

[18]      In my view, the press release draws a distinction between statements made by the Ontario Human Rights Commission, and statements made by Mr. Anand, the Chair of the Ontario Human Rights Commission. The only statements contained in the press release that are directly attributed to the Ontario Human Rights Commission are the following:

(i)   “The Ontario Human Rights Commission commends the recent court ruling that found Ernst Zundel guilty of publishing false statements denying the Holocaust”;

(ii)  “We applaud the jury’s decision since it calls for sanctions against a man responsible for contradicting the truth of the suffering experienced by the Jewish people, which was visited upon them solely because of their religion and ethnicity.”

[19]      The criminal charge that the Ontario Human Rights Commission addressed in the press release was section 177 of the Criminal Code, later renumbered to section 181. The section states:

181. Every one who wilfully publishes a statement, tale or news that he knows is false and that causes or is likely to cause injury or mischief to a public interest is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

[20]      By contrast, subsection 13(1) of the Canadian Human Rights Act states:

13. (1) 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.

[21]      In Canada (Human Rights Commission) v. Taylor,[19] Dickson C.J. held that “s. 13(1) [of the Canadian Human Rights Act] provides no defences to the discriminatory practice it describes, and most especially does not contain an exemption for truthful statements.”[20] He concluded that “the Charter does not mandate an exception for truthful statements in the context of s. 13(1) of the Canadian Human Rights Act.”[21]

[22]      The press release was made in response to a criminal charge that did afford a defence of truthfulness (“that he knows is false.”)[22] The statements attributed to the Ontario Human Rights Commission simply criticize Mr. Zündel for denying the truthfulness of the Holocaust. By contrast, in a subsection 13(1) complaint, the truth or non-truthfulness of statements is immaterial to whether the complaint is substantiated. Consequently, the issue faced by the jury in 1988 is different from the issue faced by the Canadian Human Rights Tribunal.

[23]      Shortly stated, the essence of the offence in section 177 of the Criminal Code was that the statement was false and that it could or would likely cause injury or mischief to a public interest. Thus, the truth of the statement would provide a complete defence. On the other hand, the essence of the complaint before the Canadian Human Rights Tribunal is that certain people were exposed to hatred or contempt. The truth of the statement would provide no defence.

[24]      The only statement contained in the press release that might be material to the subsection 13(1) complaint is the following:

Mr. Anand also stated that the decision is of broader significance in that it affirms not only the rights of Jews, but also of and [sic] other religious and ethnocultural groups to be free from the dissemination of false information that maligns them. [Emphasis added.]

[25]      It could be argued that the statement reproduced above states that the information disseminated by Mr. Zündel exposes Jews to hatred, the essence of a subsection 13(1) complaint. However, in my view, an informed person, viewing the matter realistically and practically—and having thought the matter through—would conclude that the press release draws a distinction between statements made by the Ontario Human Rights Commission (i.e. “the Ontario Human Rights Commission commends” or “we applaud” [emphasis added]) and statements made by Raj Anand, the Chief Commissioner of the Ontario Human Rights Commission. The statement reproduced above is attributed to Mr. Anand, and not to the Commission as a whole. Accordingly, I do not think that a reasonable and informed observer would conclude that the above statement should be attributed to Ms. Devins.

[26]      Counsel for Mr. Zündel relied heavily on the Ontario Divisional Court’s judgment in Dulmage v. Ontario (Police Complaints Commissioner)[23] to demonstrate that statements made by one member of an organization can be used to demonstrate that a different member of that organization is subject to a reasonable apprehension of bias.

[27]      In Dulmage, the president of the Mississauga chapter of the Congress of Black Women of Canada had been appointed to a Board of Inquiry pursuant to Ontario’s Police Services Act.[24] The Board was appointed to investigate a complaint that a public strip search had taken place, contrary to the manner provided in the Metropolitan Toronto Police Force’s regulations. Approximately one year before the president of the Mississauga chapter of the Congress of Black Women of Canada was appointed to the Board, the vice-president of the Toronto chapter of that organization was reported to have publicly stated that the strip search incident at issue was “not an `isolated case’ and reflects the `sexual humiliation and abuse of black women.’”[25] In a different statement, the vice-president recommended “an RCMP investigation of [the] incident,”[26] and urged that the then-Chief of the Metropolitan Toronto Police Force resign, saying that “Chief McCormack has clearly demonstrated an inability to give effective leadership to the Police Force.”[27]

[28]      In its decision, the Divisional Court concluded that the president who had been appointed to the Board of Inquiry was subject to a reasonable apprehension of bias. O’Brien J. held:

… inflammatory statements dealing with this very incident involved in this inquiry were made by an officer of the Congress of Black Women of Canada. Those statements were made in Toronto, closely adjacent to the City of Mississauga. They deal with an incident which received significant public attention. The statements referred to the incident as an “outrage” and called for the suspension of the officers involved. Those officers were the very ones involved in this hearing.

Ms. Douglas was the president of the Mississauga chapter of the same organization.[28]

[29]      Similarly, in his dissenting reasons (although not on this point), Moldaver J. held that “[t]he remarks themselves related, at least in part, to the critical issue which the board was required to decide.”[29]

[30]      In my view, Dulmage is distinguishable because the statements at issue in Dulmage dealt with the very question at issue before the Board of Inquiry, whereas the statements made by the Ontario Human Rights Commission address an issue that is immaterial to the subsection 13(1) Tribunal inquiry that Ms. Devins has been asked to determine.

[31]      I think the House of Lords’ decision in Pinochet, Ugarte, Re[30] can be distinguished on a similar basis. In that appeal, the House of Lords vacated the earlier order it had made in Pinochet, Ugarte, Re[31] because Lord Hoffman, one of the members who heard the appeal, had links to an intervener (Amnesty International) that had argued on the appeal at the House of Lords.

[32]      When Lord Hoffman heard the appeal at issue in Pinochet, he had been a Director and Chairperson of Amnesty International Charity Limited. That corporation was charged with undertaking charity work for Amnesty International, the entity that had intervened in Pinochet.

[33]      The type of bias at issue in Pinochet was characterized by Lord Browne-Wilkinson as “where the judge is disqualified because he is a judge in his own cause.”[32] Lord Browne-Wilkinson then held that “[i]f the absolute impartiality of the judiciary is to be maintained, there must be a rule which automatically disqualifies a judge who is involved, whether personally or as a Director of a company, in promoting the same causes in the same organisation as is a party to the suit.”[33] Lord Browne-Wilkinson highlighted that “[t]he facts of this present case are exceptional,”[34] holding that “[t]he critical elements are (1) that [Amnesty International] was a party to this appeal; (3) the judge was a Director of a charity closely allied to [Amnesty International] and sharing, in this respect, [Amnesty International’s] objects.”[35] He concluded that “[o]nly in cases where a judge is taking an active role as trustee or Director of a charity which is closely allied to and acting with a party to the litigation should a judge normally be concerned either to recuse himself or disclose the position to the parties.”[36]

[34]      Accordingly, Pinochet is not analogous to this appeal. It might be so if the Ontario Human Rights Commission was a party to the proceedings before the Tribunal. Since it was not, I do not think that Pinochet demonstrates that Ms. Devins is subject to a reasonable apprehension of bias.

OTHER ERRORS MADE BY THE MOTIONS JUDGE

[35]      I now turn to other alleged errors made by the Motions Judge. In my view, he committed the following errors, each of which I address at greater length below:

1. He failed to address the presumption of impartiality;

2. He failed to consider whether the press release demonstrated an objectively justifiable disposition;

3. He failed to properly connect Ms. Devins to the press release;

4. He failed to give appropriate weight to the passage of time;

5. He erred in concluding that the Ontario Human Rights Commission was an adjudicative body and had no legitimate purpose in making the press release;

6. He erred in concluding that a doctrine of “corporate taint” exists.

Presumption of impartiality

[36]      In my view, the Motions Judge erred by failing to take into account the principle that a member of a Tribunal will act fairly and impartially, in the absence of evidence to the contrary. In R. v. S. (R.D.), Cory J. held that “the reasonable person must be an informed person, with knowledge of all the relevant circumstances, including `the traditions of integrity and impartiality that form a part of the background and apprised also of the fact that impartiality is one of the duties the judges swear to uphold’.”[37] He added that “the threshold for a finding of real or perceived bias is high,”[38] and that “a real likelihood of probability of bias must be demonstrated, and that a mere suspicion is not enough.”[39] Further, Cory J. held that “[t]he onus of demonstrating bias lies with the person who is alleging its existence.”[40]

[37]      In Beno v. Canada (Commissioner and Chairperson, Commission of Inquiry into the Deployment of Canadian Forces to Somalia),[41] this Court held that there is a presumption that a decision maker will act impartially.[42] Similarly, in E.A. Manning Ltd. v. Ontario Securities Commission,[43] the Ontario Court of Appeal held, in the context of a bias allegation levelled against a securities commission, that “[i]t must be presumed, in the absence of any evidence to the contrary, that the Commissioners will act fairly and impartially in discharging their adjudicative responsibilities and will consider the particular facts and circumstances of each case.”[44] And in Finch v. Assn. of Professional Engineers & Geoscientists (British Columbia)[45] the British Columbia Court of Appeal held that it must be assumed, “unless and until the contrary is shown, that every member of this committee will carry out his or her duties in an impartial manner and consider only the evidence in relation to the charges before the panel.”[46]

Failure to consider whether the press release demonstrated an objectively justifiable disposition

[38]      In R. v. S. (R.D.), Cory J. offered a useful definition of the word “bias.” He held that “bias denotes a state of mind that is in some way predisposed to a particular result, or that is closed with regard to particular issues.”[47] He added that “not every favourable or unfavourable disposition attracts the label of prejudice.”[48] He held that where particular unfavourable dispositions are “objectively justifiable,”[49] such dispositions would not constitute impermissible bias. He offered “those who condemn Hitler”[50] as examples of objectively justifiable dispositions and, therefore, such comments do not give rise to a reasonable apprehension of bias on the part of the speaker.

[39]      In the Supreme Court’s judgment that overturned Mr. Zündel’s criminal conviction for publishing the “Did Six Million Really Die?” pamphlet, McLachlin J. (as she then was) referred to Mr. Zündel’s beliefs as “admittedly offensive,”[51] while Cory and Iacobucci JJ. described the pamphlet as part of a “genre of anti-Semitic literature”[52] that “makes numerous false allegations of fact.”[53] In light of these statements, how could it not be objectively justifiable for the Ontario Human Rights Commission and its Chair to have made similar statements regarding the same pamphlet in their press release?

Failure to connect Ms. Devins to the press release

[40]      The Motions Judge held that it would be a reasonable conclusion to think that at the time the press release was issued, both the Chair of the Ontario Human Rights Commission and its members held a strong actual bias (i.e. and not just a reasonable apprehension of bias) as against Mr. Zündel.

[41]      He later held that “the passage of time does not eradicate the fact that Ms. Devins is reasonably attributed with strong actual bias.”[54] However, from the Motion Judge’s reasons, it appears that he took Ms. Devins’ present denial of bias into account to conclude that at the time the Tribunal was appointed to inquire into the subsection 13(1) complaint, there was “insufficient evidence to find present actual bias by Ms. Devins against the applicant.”[55]

[42]      In my view, the Motions Judge’s reasons confuse the passage of time with Ms. Devins’ actual connection to the press release. There was no evidence that Ms. Devins was aware of the press release, let alone agreed with or was party to its issuance so as to demonstrate actual bias at the time the press release was issued. Similarly, there was no evidence of conduct of Ms. Devins from which one could infer a reasonable apprehension of bias later.

Failure to give appropriate weight to the passage of time

[43]      In the instant matter now on appeal, the Motions Judge attributed little or no weight to the time that had passed between the date the press release was issued and the date on which Ms. Devins was appointed to determine the complaint launched against Mr. Zündel. He held that “the passage of time does not eradicate the fact that Ms. Devins is reasonably attributed with strong actual bias.”[56]

[44]      In so doing, I think the Motions Judge failed to give appropriate weight to the amount of time that had passed between the date on which the press release was issued and the date Ms. Devins was asked to hear the subsection 13(1) complaint. In Dulmage, referred to earlier in these reasons, Moldaver J. concluded that the impugned board member was subject to a reasonable apprehension of bias in part because the press conference during which the statements were made had only taken place one year before the board hearing, a period of time that he did not consider to be “sufficient to expunge the taint left in the wake of these remarks.”[57]

[45]      In the instant appeal, the Tribunal at issue was appointed some nine years after the press release was issued: a much greater time lag than was at issue in Dulmage, and one that, along with the other factors considered in this judgment, I consider to be sufficient to expunge any taint of bias that might have existed by reason of the press release.

Error in concluding that a doctrine of “corporate taint” exists

[46]      By concluding that all members of the Ontario Human Rights Commission would be biased by reason of the press release, the Motions Judge appeared to conclude that there is a doctrine of corporate “taint,” a taint that is said to paint all members of a decision-making body with bias in certain circumstances. In Bennett v. British Columbia (Securities Commission),[58] the British Columbia Court of Appeal rejected the doctrine of corporate taint. It held:

We wish to add one further observation and that is as to the target of a bias allegation. Bias is an attitude of mind unique to an individual. An allegation of bias must be directed against a particular individual alleged, because of the circumstances, to be unable to bring an impartial mind to bear. No individual is identified here. Rather, the effect of the submissions is that all of the members of the commission appointed pursuant to s. 4 of the Securities Act, regardless of who they may be, are so tainted by staff conduct that none will be able to be an impartial judge. Counsel were unable to refer us to a single reported case where an entire tribunal of unidentified members had been disqualified from carrying out statutory responsibilities by reason of real or apprehended bias. We think that not to be surprising. The very proposition is so unlikely that it does not warrant serious consideration.[59]

[47]      Similarly, in Laws v. Australian Broadcasting Tribunal,[60] Australia’s High Court concluded that the doctrine of corporate taint did not exist, absent circumstances that permit an inference to be drawn that all members of an administrative tribunal authorized or approved statements or conduct that gave rise to a reasonable apprehension of bias on the part of one of its members. In Laws, three members of the Australian Broadcasting Tribunal conducted a preliminary investigation of Mr. Laws, and concluded that he had breached broadcasting standards. The Director of the Tribunal’s Programs Division later gave an interview in which she repeated the conclusions made by the three Tribunal members. Mr. Laws sought an order prohibiting the entire Tribunal from later holding a formal hearing to determine whether it should exercise regulatory powers against Mr. Laws. His application was brought on the basis that the prejudgment expressed by the three members who had conducted the preliminary investigation and the statements made by the Director of the Programs Division served to taint the entire Tribunal.

[48]      Australia’s High Court rejected Mr. Laws’ application. It held:

However, though it might be correct to regard the interview as a corporate act, it was not necessarily an act done on behalf of each of the individual members of the corporation. The circumstances are not such as to justify the drawing of an inference that each of the individual members of the tribunal authorised the interview or approved of its content. At best, from the appellant’s viewpoint, it might be inferred that the three members of the tribunal who made the decision of 24 November so authorised or approved the interview.[61]

[49]      These decisions, I think, demonstrate that there is no doctrine of corporate taint. I prefer the reasoning in these decisions to the implication drawn by the majority in the Dulmage decision that such a taint could be said to exist.[62]

[50]      As I have previously explained in these reasons, I do not think that the proviso contained in the paragraph reproduced above from the Laws decision applies in the circumstances of this appeal: one cannot draw an inference that each of the individual members of the Ontario Human Rights Commission authorized the entire press release that was issued. To the extent that the members of the Commission could be said to have authorized certain statements contained in the press release, any such statements are immaterial to the complaint that Ms. Devins has been asked to determine.

THE SUPREME COURT OF CANADA’S JUDGMENT IN NEWFOUNDLAND TELEPHONE CO. v. NEWFOUNDLAND (BOARD OF COMMISSIONERS OF PUBLIC UTILITIES)

[51]      Counsel for the appellants relied on the Supreme Court of Canada’s judgment in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities)[63] for the proposition that the Ontario Human Rights Commission was engaged in a policy-making function at the time the press release was issued and therefore the statements contained in the press release were subject to a much lower standard of impartiality.

[52]      In Newfoundland Telephone, Andy Wells was appointed to a Board that was responsible for the regulation of the Newfoundland Telephone Company Limited. After he was appointed to the Board, and after the Board had scheduled a public hearing to examine Newfoundland Telephone’s costs, Mr. Wells made several strong statements against Newfoundland Telephone’s executive pay policies. Mr. Wells was one of five who sat on that hearing. Counsel for Newfoundland Telephone objected to Mr. Wells’ participation at the hearing, arguing that the strong statements Mr. Wells had made demonstrated that he was subject to a reasonable apprehension of bias.

[53]      In Newfoundland Telephone, Cory J. recognized that administrative decision makers were subject to varying standards of impartiality. He held that “those that are primarily adjudicative in their functions will be expected to comply with the standard applicable to courts,”[64] while boards with popularly elected members are subject to a “much more lenient” standard.[65] He added that administrative boards that deal with matters of policy should not be subject to a strict application of the reasonable apprehension of bias test, since to do so “might undermine the very role which has been entrusted to them by the legislature.”[66] Accordingly, he held that “a member of a board which performs a policy formation function should not be susceptible to a charge of bias simply because of the expression of strong opinions prior to the hearing.”[67]

[54]      Accordingly, Cory J. held that, had the following statement been made before the Board’s hearing date was set, it would not amount to impermissible bias: “[s]o I want the company hauled in here—all them fat cats with their big pensions—to justify (these expenses) under the public glare … I think the rate payers have a right to be assured that we are not permitting this company to be too extravagant.” He supported that conclusion in the following manner:

That comment is no more than a colourful expression of an opinion that the salaries and pension benefits seemed to be unreasonably high. It does not indicate a closed mind. Even Wells’ statement that he did not think that the expenses could be justified, did not indicate a closed mind. However, should a commissioner state that, no matter what evidence might be disclosed as a result of the investigation, his or her position would not change, this would indicate a closed mind.[68]

[55]      In Newfoundland Telephone, Cory J. held that once a board member charged with a policy-making function is then asked to sit on a hearing, “a greater degree of discretion is required of a member.”[69] Once a hearing date was set, Cory J. held that the board members at issue in Newfoundland Telephone had to “conduct themselves so that there could be no reasonable apprehension of bias.”[70] In other words, a person who is subject to the “closed mind” standard can later be required to adhere to a stricter “reasonable apprehension of bias” standard.

[56]      Counsel for the appellants have seized on these aspects of Cory J.’s judgment in Newfoundland Telephone to demonstrate that the Motions Judge erred by concluding that when the Ontario Human Rights Commission issued the press release, it was engaged in adjudicative functions, and was therefore required to abide by a high standard of impartiality. Instead, counsel for the appellants argue that the Ontario Human Rights Commission was engaged in a policy-making function when it issued the press release, and was therefore subject to a much lower standard of impartiality.

[57]      While I agree that the Motions Judge erred when he concluded that the Ontario Human Rights Commission was engaged in an adjudicative role when it issued the press release, I do not agree with the further implications sought to be drawn by the appellants.

[58]      When the press release was issued by the Ontario Human Rights Commission, it was charged with the following functions:

28. It is the function of the Commission,

(a)  to forward the policy that the dignity and worth of every person be recognized and that equal rights and opportunities be provided without discrimination that is contrary to law;

(b)  to promote an understanding and acceptance of and compliance with this Act;

…

(d)  to develop and conduct programs of public information and education and undertake, direct and encourage research designed to eliminate discriminatory practices that infringe rights under this Act.[71]

[59]      Clauses 28(a), (b) and (d) demonstrate that the Ontario Human Rights Commission is vested with policy-making functions and with an obligation to educate and to inform the public. Accordingly, I do not agree with the Motion Judge’s conclusion that the press release issued by the Ontario Human Rights Commission was “thoroughly inappropriate.” Rather, the statement was consistent with its statutory obligation, inter alia, “to forward the policy that the dignity and worth of every person be recognized.”

[60]      However, I do not think that the Newfoundland Telephone case provides much assistance to the appellants. In my view, one should bear in mind that in Newfoundland Telephone, the Board was specifically charged with dual functions: investigatory ones and adjudicative ones. Among its investigatory powers, the Board was permitted to “make all necessary examinations and enquiries to keep itself informed as to the compliance by public utilities with the provisions of law,”[72] to “enquire into any violation of the laws or regulations in force,”[73] to “summarily investigate … [w]henever the Board believes that any rate or charge is unreasonable or unjustly discriminatory.”[74] In the same breath, the Board was permitted to hold hearings “[i]f after making any summary investigation, the Board becomes satisfied that sufficient grounds exist to warrant a formal hearing.”[75] Accordingly, the statute specifically envisaged that Board members who had acted in an investigatory capacity could later act as adjudicators. Indeed, in Newfoundland Telephone, Cory J. [at page 644] held that even when the Board at issue in that appeal was required to abide by the reasonable apprehension of bias standard, the standard “need not be as strict for this Board dealing with policy matters as it would be for a board acting solely in an adjudicative capacity.”

[61]      By contrast, the Canadian Human Rights Tribunal is vested with no policy functions or with dual functions: it is simply charged with the adjudication of human rights complaints. Accordingly, unlike Newfoundland Telephone, there is no statutory authority for the proposition that Parliament specifically envisaged that members of the Canadian Human Rights Tribunal would have engaged in policy-making functions with regard to the very same issues that they would later be asked to adjudicate.

CONCLUSION ON BIAS

[62]      In my view, the Motions Judge erred when he concluded that Ms. Devins was subject to a reasonable apprehension of bias. I would set aside his decision, and remit the matter to the Canadian Human Rights Tribunal.

2.         Was the Motions Judge correct in holding that, if there was a reasonable apprehension of bias, the Tribunal could continue with the hearing?

[63]      In the event I am wrong on the first issue it is necessary to deal with the second issue: namely, whether the Motions Judge erred by concluding that even though Ms. Devins was subject to a reasonable apprehension of bias, the remaining member of the Tribunal could continue to determine the as-yet undetermined complaint at issue before the Canadian Human Rights Tribunal.

[64]      In my view, the Motions Judge erred by concluding that where a reasonable apprehension of bias is proven, the remaining members of the Tribunal could continue to hear and determine the complaint. At the time the bias allegation was raised, the panel of which Ms. Devins was a member had sat for some 40 days, and had made approximately 53 rulings. Counsel for Mr. Zündel argued that each one of those rulings was contrary to the result for which he had argued.

[65]      Viewed in this light, I cannot see how the Tribunal’s proceedings could somehow be remedied merely by virtue of there being one remaining member of the Tribunal who could determine the complaint. How could one ever know whether the Tribunal’s ultimate decision was somehow affected by one or more of the Tribunal’s rulings? How could one ever know whether the biased member had expressed her preliminary views on the merits of the complaint before she was ordered to be recused from the proceedings? And how could one ever know whether those consultations might have somehow affected the remaining member’s decisions on the interlocutory rulings? These concerns, I think, demonstrate that where one member of an administrative tribunal is subject to a reasonable apprehension of bias and a number of serious interlocutory orders have been made over the course of a lengthy hearing, the tribunal’s proceedings should be quashed in their entirety, even though a statutory provision on its face permits the tribunal to proceed with fewer members where a member is, for some reason, unable to proceed.

[66]      My conclusions are supported by Cory J.’s reasons in R. v. S. (R.D.), where he held:

If a reasonable apprehension of bias arises, it colours the entire trial proceedings and it cannot be cured by the correctness of the subsequent decision. See Newfoundland Telephone, supra, at p. 645; see also Curragh, supra, at para. 6. Thus, the mere fact that the judge appears to make proper findings of credibility on certain issues or comes to the correct result cannot alleviate the effects of a reasonable apprehension of bias arising from other words or conduct of the judge. In the context of an application to disqualify a judge from sitting in a particular lawsuit, it has been held that where there is a reasonable apprehension of bias, “it is impossible to render a final decision resting on findings as to credibility made under such circumstances.”[76]

CONCLUSION

[67]      I would allow the appeal, with costs and set aside the order of the Motions Judge dated April 13, 1999 and remit the matter back to the Tribunal for completion of the hearing.

Isaac J.A.: I agree.

Robertson J.A.: I agree.

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