Kyburz Case Summary - September 2003

BASIC SUMMARY OF THE CASE

Warman filed a complaint on 2 February 2002 alleging that Kyburz had communicated telephonically matters that were likely to expose Jews to hatred or contempt on the basis of race, national or ethnic origin, and religion contrary to s. 13(1) of the Act. Warman's complaint was later amended to include an allegation of retaliation for having filed the human rights complaint contrary to s. 14.1 of the Act.

The CHRT held two days of hearings in March of 2003 at which Kyburz declined to appear. The Tribunal rendered their decision upholding both complaints on 9 May 2003.

WHAT ARE THE FACTS OF THIS CASE?

Warman became aware of Kyburz's website patriotsonguard.org in March of 2001. Due to the anti-semitic content of the website, Warman brought the matter to the attention of Kyburz's US-based Internet Service Provider (ISP). The ISP first asked Kyburz to remove the offending material and then closed the site when he refused to do so. In the meantime, Kyburz had obtained a copy of Warman's email from the ISP and immediately began attacking Warman through anti-semitic emails and postings on his website that presumed Warman was Jewish.

The website resurfaced approximately a week later using another ISP and Kyburz continued an incessant campaign vilifying Warman with anti-semitic postings on his website. This website was ultimately shut down in December of 2001 after Warman contacted Kyburz's second ISP.

A few months later, Kyburz established a public internet forum on the Yahoo website entitled Patriots On Guard and continued to disseminate messages with similar content to those that had appeared on his website.

After Warman filed the human rights complaint in February 2002, Kyburz's attacks upon him intensified.

WHAT DOES THE DECISION SAY?

Issues

a) Did Kyburz repeatedly communicate or cause to be communicated the messages on the website?

b) Were the messages communicated in whole or in part via a telecommunications undertaking within the authority of Parliament?

c) Is the subject matter of the messages likely to expose a person or persons to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination?

d) Did Kyburz retaliate or threaten retaliation against Warman for filing the human rights complaint?

e) If yes to the above, what are the appropriate remedies?

How the Tribunal Dealt with the Issues

a) Did Kyburz repeatedly communicate or cause to be communicated the messages on the website?

There was substantial evidence that led the Tribunal to hold that he had. Similar to the Zundelsite, Kyburz signed his name on the homepage of the website, as well as on numerous other documents contained on the website. In addition, the site solicited subscriptions to a newsletter and requested that moneys be sent to Kyburz's address in Blairmore, Alberta. Lastly, Kyburz was the registered owner and contact for the website on registration documents for the URL of www.patriotsonguard.org.

In terms of the question of repetition, the Tribunal simply referred to the visitor counter of the website to demonstrate that the messages had been repeatedly disseminated.

b) Were the messages communicated via a telecommunications undertaking within the authority of Parliament?

The Tribunal noted that it was not entirely clear as to which version of s. 13 governed the complaint in that some of the instances in question pre-dated the change in the Act in December of 2001 that made it explicit that the jurisdiction of the Act included the internet.

The Tribunal found, however, that in either event the messages fell within the Tribunal's jurisdiction. If the earlier version applied, then the Tribunal would apply the decision in Zundel to give jurisdiction, and if the later version applied, then jurisdiction was explicit.

c) Was the subject matter of the messages likely to expose a person(s) to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination?

In addition to his own posts, Kyburz would frequently post material authored by others and append his comments at the end. The Tribunal noted that much of the material concerned the supposed evils of 'Ashkenazi Jews' or Jews of European descent. Taken together, the Tribunal held that the content of Kyburz's website told the reader that Jews are innately devious, treacherous, murderous, desired to kidnap and kill "white children" as well as take over the world. Further, Kyburz described Jews as sub-human, scum, vermin, and low-lives, and posted material that advocated the extermination of the Jewish people.

The Tribunal had no difficulty in finding that this material would foster hatred and contempt of Jews on the basis of their religion. Further, due to his persistent attacks on Jews of European origin, the Tribunal also held that Kyburz had discriminated against Jews on the basis of their national or ethnic origin. The Tribunal also accepted the expert witness testimony that Kyburz's efforts to ascribe negative character traits to Jews as innate or inherited supported a finding of discrimination on the basis of race due to Kyburz's intent rather than actual fact.

On the basis of the evidence and these findings, the Tribunal upheld the section 13 complaint against Kyburz.

d) Did Kyburz retaliate for the filing of the complaint?

The Tribunal found that Kyburz was responsible for the creation of the 'patriots on guard' Yahoo forum and for much of the content therein. This content repeatedly attacked Warman, indicated that a letter had been sent to Warman's employer ascribing the commission of heinous criminal activities to Warman and demanding his dismissal. More troubling to the Tribunal were the thinly veiled death threats issued by Kyburz against Warman on this forum.

There was some question regarding the admissibility of emails sent by Kyburz to numerous parties including members of the Commission shortly before the Tribunal hearing which left inadequate time for their disclosure by the Commission. As Kyburz had chosen to boycott the hearing, the material could not be disclosed to him there. In the end, the Tribunal declined to rule on the question as they indicated that the emails in question added little to the complaint and were merely a continuation of the same types of material already contained on the record.

Based on the existing material, the Tribunal found that Kyburz had repeatedly attacked Warman's character, attempted to have Warman fired from his employment, and issued death threats against him and that such actions escalated dramatically following the filing of the human rights complaint. Thus, the Tribunal upheld the s. 14.1 complaint as well.

e) What are the appropriate remedies?

i) for the s. 13 complaint?

The Tribunal ordered that Kyburz and any persons acting in concert with him cease communicating telephonically messages such as those found in the evidence entered before the Tribunal, or any similar such messages that would be likely to expose a person to hatred or contempt on the basis of a prohibited ground of discrimination.

The Tribunal further ordered Kyburz to close the Yahoo forum within seven days of receiving the Tribunal judgement, but declined to order Kyburz to contact an internet body that archived much of the internet and where a few remnants of Kyburz's site could still be found.

Based on Kyburz's vicious and anti-semitic tirades against Warman, the Tribunal ordered Kyburz to pay $15,000 in damages under s. 54(1)(b) of the Act. In a ruling of some interest, the Tribunal

accepted the Commission argument that Warman was entitled to damages as a victim of the discrimination despite the fact that he is not himself Jewish. The Tribunal agreed that it was Kyburz's intent to discriminate on a prohibited ground that should be the deciding factor, and not the accuracy of that intent. Interest was also awarded.

ii) under the penalty clause of s. 54(1)(c)?

This was the first time that the Tribunal had considered the new penalty provisions under s. 54(1)(c) that give them the power to order what is in essence a monetary fine of up to $10,000 as a penalty to reflect society's disapproval taking into account the nature of the discrimination, the intent of the person, their past practices, and their ability to pay.

The Tribunal held that Kyburz's actions were extreme in nature and had included calls for the extermination of the Jewish people thus weighing in favour of a significant penalty. The fact that they had no evidence of previous practices served somewhat as a mitigating factor. Given Kyburz's boycotting of the hearing, the Tribunal gave little weight to his self-proclaimed poverty and said that it is the responsibility of the respondent to raise admissible evidence of their financial circumstances. With all of the above in mind the Tribunal imposed a penalty of $7,500 payable within 35 days of notification of the decision.

iii) retaliation?

The Tribunal reviewed the fact that Kyburz had engaged in serious retaliation against Warman including repeated defamation, attempting to have Warman fired from his position at the Federal Court, and also issuing death threats against him.

A cease and desist order in relation to the retaliation was issued. In addition, the Tribunal considered Warman's testimony as to the effect of the retaliation including concerns for his personal safety to the extent of involving the police in the matter. Based on this, an award of $15,000 in damages for pain and suffering was considered appropriate with interest.

WHAT DOES THIS MEAN FOR FUTURE CASES?

The case has fairly important future implications because:

• - reinforces human rights act jurisdiction over the internet

• - the Tribunal will still render a decision even if the respondent attempts to boycott the hearing

• - the intent of the discriminator is the deciding factor, (ie. Kyburz attacked Warman because he erroneously thought he was Jewish) not the accuracy of that intent

• - the substantial damages awarded should serve as a deterrent to others

keywords:

Kyburz  Warman  anti-semitism   

Hate messages - Zundel v. Canada

Canadian human Rights Act

Hate messages

(excerpted from Michael Geist, Internet Law in Canada: Captus Press (2000) pp 141 146)

• 13. [1] It is a discriminatory practices for a person or 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.

• [2] Subsection [1] does not apply in respect of any matter that is communicated in whole or in part by means of the facilities of the broadcasting undertaking.

• [3] For the purposes of this section, no owner or operator of a telecommunication undertaking communicates causes to be communicated any matter described in subsection [1] by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons with transmission of that matter.

Zundel v. Canada [Attorney-General] (F.T.C.T.D., 1999) 67 C.R.R. (2d) 54.)

The complainants alleged that Mr. Zundel was violating s. 13 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 by causing hate messages to be communicated through computer website known as the "Zundelsite", which can be readily accessed through the Internet. The server for the website, and the person who manages it and posts material on it are located in California. The complainants took objection to material on the "Zundelsite" claiming that the scale of the Holocaust had been greatly exaggerated; they alleged that this material was likely to expose persons of the Jewish faith or ethnicity into a tree or contempt.

In this application for judicial review Mr. Zundel challenges on five grounds the commission's decision to request the appointment of a tribunal, and the jurisdiction of the tribunal to inquire into the complaints. First, the commission's decision to request the appointment of a tribunal is vitiated by bias as a result of statements made by the Deputy Chief Commissioner prior to the filing of the complaints and to her subsequent participation in the commission's decision to refer them for adjudication. Second, the tribunal has no jurisdiction to inquire into these complaints because material posted on the website in the form of text and graphics is not communicated "telephonically" as required by section 13. Third, a tribunal has no jurisdiction to hear and determine these complaints because the server for the website is located outside Canada, as is the person responsible for selecting what is posted on it, who is the only person able to enter the material.

The issues raised by Mr. Zundel challenge the legal authority of the commission and the tribunal to regulate material available on the Internet, which is fast becoming one of the most powerful media of mass communication. The benefits to be obtained from awaiting the tribunal's considered determination of questions of this complexity, novelty and importance clearly outweigh the costs to Mr. Zundel, and to the public purse, of permitting the administration process to run its course before the matter is fully reviewed by the court.

[i] " Communicate Telephonically"

It is a discriminatory practice under section 13 [1] for a person or group of persons to "communicate telephonically or to be caused to be for communicated. . . By means of the facilities of a telecommunication undertaking within the legislative authority of Parliament" material commonly known as hate messages.

Counsel for Mr. Zundel submitted that material was only "communicated telephonically", and so capable of falling within the scope of Section 13 [1], if the communication involved the transmission of the human voice through the medium of the telephone and telephone wires. He relied heavily on dictionary definitions of "telephone" and "a telephonic" to support this interpretation. While sounds can be transmitted between computers, it was agreed that only text and graphics were available on the "Zundelsite".

Furthermore, it was argued, an interpretation of Section 13(1) that includes messages heard on the telephone, but not material obtained by computer from a web site, is also supported by a policy considerations. In particular, those who access the "Zundelsite" have available to them there material that challenges the "revisionists" view of the Holocaust advanced by Mr. Zundel. In other words, "the Zundelsite" is a less powerful medium of communication than a pre-recorded message on a telephone answering machine because it allows those interested to enter into an active exchange of views, and to gain access to a range of opinions.

Counsel from Ms. Citron, on the hand, submitted that the adverb "telephonically" should be interpreted broadly so as to include the Internet, on the ground that most users given access to by dialling up and using a modem that is plugged into a telephone line outlet, and that information passes in digital form along telephone wires from the "Zudelsite" server to the computer of the person accessing it. The fact that sound, indicating the human voice, is not being transmitted should not be conclusive.

In support of for her position counsel relied on a broader definition of the word "tell telephonically" contained in Newton's Telecom Dictionary, a not particularly authoritative source. In addition, counsel pointed out that if "telephonically" were given the meeting for which the respondent contended, its presence in the Act would still serve a purpose because it would, for example, exclude communication by satellite.

More importantly, counsel relied on the principle that human rights legislation, been quasi-constitutional in nature, should be given a broad and liberal interpretation. Accordingly, in order to tackle the mischief at which Section 13 is aimed, namely the dissemination of hate messages, Section 3(1) should be interpreted in a manner that accomplishes this goal by including this powerful new medium which relies in part on the telephone system. Section 13(2) specifically exempts from Section 13(1) material that is communicated by the facilities of the broadcasting undertaking this is because broadcasting is regulated by another federal agency the CRTC.

There is little doubt that when section 13 was first enacted in 1977 Parliament almost certainly did not intend the adverb "telephonically" to include communication via the Internet because it was not then a widely available medium. However, on a progressive, as opposed to a static interpretation of the Act, a court could conclude that "telephonically" should be construed in light of both the overall purpose of the legislation as set out in Section 2, and technological developments.

In Canada (Attorney-General) v. Mossop (1993), it is true, the court refused to interpret "family status" as including same-sex couples, largely because a contemporaneous amendment to include sexual orientation as a prohibited ground of discrimination had been defeated in the House of Commons. However, there is no evidence that Parliament consider the application of Section 13 to the Internet, and rejected it.

Dictionaries, no doubt, still have their place in assisting in the interpretation of statutory language, particularly in identifying the range of meanings that words are capable of bearing in the ordinary use of the English-language. However, it is a place of diminishing importance, as courts have increasingly sought to attribute meaning to the text of legislation by placing more weight on the statutory context in which the words are used, and the purposes underlying the legislative scheme.

Indeed, the Supreme Court of Canada has regularly endorsed a broad and positive approach to the interpretation of human rights legislation in recognition of its quasi-constitutional status. This is another important reason for no longer regarding Bell v. Ontario, (Human Rights Commission), supra, as reliable president; in 1970 the court attached at least as much weight to the respondents proprietary rights as to the complainants right not to be the subject of discrimination, which at that time had no quasi-constitutional status.

Therefore, on a consideration of the language of the Act, the evidence and the interpretive approach to be taken to human rights legislation, it cannot be said that the position adopted by the commission on the interpretation of the word "telephonically" lacks a rational basis. Whether it is correct in law is not for me to decide in this proceeding; that will be fore the court before which any application for judicial review of the tribunal's decision is brought. Meanwhile, the tribunal must be permitted to make findings of fact about technical aspects of internet communication on the evidence before it, and to give its considered interpretation of Section 13 in light of the arguments of counsel and its own understanding of the purposes of the Act.

[ii] The Extraterritorial Issue

Counsel for Mr. Zundel submitted that section 13 does not permit the commission and the tribunal to regulate material posted on websites that are located beyond Parliament's to geographic reach, when the person in control of the section and posting of the material is also outside Canada. The fact that interested individuals may access the "Zundelsite" from within Canada was, he submitted, insufficient to justify the extraterritorial reach that the commission was purporting to give to the Canadian Human Rights Act.

The position of the respondents and of the commission on this issue was simple. They submitted that Section 13 (1) prohibits people in Canada from communicating hate messages are causing them to be communicated. Mr. Zundel is present in Canada, and the commission maintains that, while he may not have posted material on the "Zundelsite" himself, and indeed, may be incapable tactically of doing so, in fact he controlled the selection of the material that was posted, including many of his own writings, some of which had originally appeared in printed form.

Evidence was tended to show that the "Zundelsite" was under the supervision of Dr. Ingrid Rimland, "the webmaster", who not only shared Mr. Zundel's views of the Holocaust, but also was paid for her services. The commission argued that it could be inferred from the communications between Mr. Zundel and Dr. Rimland, from the nature of the relationship between them, and from Mr. Zundel's references to "our 'Zundelsite'", "my webmaster", that Mr. Zundel in fact exercised such a substantial degree of control over what Dr. Rimland posted on the "ZUndelsite" that he could be said to be causing the material on the "Zundelsite" to be communicated.

I agree with the proposition that a person in Canada causes material to be communicated for the purpose of Section 13 if that person effectively controls the content of material posted on a website that is maintained from on-site Canada.

Whether Mr. Zundel exersized the requisite degree of control over the content of the "Zundelsite" to bring him within Section 13 is a question with a very significant factual component. There was sufficient evidence before the commission on this issue to enable it to conclude that an inquiry into the complaints by a Human Rights Tribunal was warranted. It should be left to the tribunal to decide whether the evidence adduced at the hearing by the parties is sufficient to establish that Mr. Zundel was causing the material to be communicated for the proposal Section 13.

[iii] " Cause to be communicated"

Counsel argued on behalf of Mr. Zundel that he could not be found to be in violation of Section 13 [1] by reason of having caused the communication of material on the website to which the complaints related. His argument was that those who accessed the "Zundelsite" from their computers and called up the material that they wished to see caused it to be communicated; until then it was simply stored in electronic files.

This is the merest sophistry and provides no basis for the court to intervene in the proceedings now before the tribunal. It would follow from the counsels submission that the person who opens the morning's newspaper causes its content to be communicate to her, rather than the journalists who wrote the items that are published and printed in the newspaper.

[................]

Canada [Human Rights Commission] v. Canadian Liberty Net [1998] 1 S. C. R. 626

In December 1991, the Canadian Rights Commission (the "Commission") received five complaints regarding telephone messages made available by an organization advertising itself as "Canadian Liberty Net". Callers to the Liberty Net phone number were offered a menu of telephone messages to choose from, by subject area. These the messages included denials of the existence or extent of the Holocaust; assertions that non-white "aliens " are importing crime and problems into Canada, and the implicit suggestion that violence could be helpful to "set matters straight"; criticism of an alleged "Kosher tax" on some foods to ensure that some percentage could can be certified as Kosher; complaints about the alleged domination of the entertainment industry by Jews; and number of messages decrying the alleged persecution of well known leaders of the white supremacist movement. After having investigated the content of the messages, the Commission requested on January 20th, 1992 that a Human Rights Tribunal [the "Tribunal"] be empanelled to decide whether these messages were in violation of Section 13 [1] of the Human Rights Act, which makes it a "discriminatory practice... to communicate telephonically... any matter that is likely to expose a person or persons to hatred or contempt... on the basis of a prohibited ground of discrimination". Section 3 of the Act includes race, national or ethnic origin, colour, and religion as prohibited grounds of discrimination.

On January 27, 1992, one week after the request to the Tribunal, the Commission filed an originating notice of motion before the Federal Court of Canada, Trial Division, seeking an injunction, enjoining Liberty Net, including Tony McAleer and any other associates in the Liberty Net organization from making available any phone messages "that are likely to expose presses to hatred or contempt by reason of the fact that those persons are identifiable on the basis of race, national or ethnic origin, colour or religion", until a final order of the Tribunal is rendered. On the February fifth and sixth, the motion was argued, and on March 3rd, 1992, Muldoon J. granted the injunction sought. Upon further submissions of the parties, Muldoon J. varied the content of his order slightly, although those charges are not germane to any controversy in this appeal.

A Tribunal was empanelled in response to the Commission's request and held hearings for a total of five days in May and August 1992. The panel reserved its decision for more than a year, finally rendering a decision on September 9th, 1993. Thus, the injunction order of Muldoon J. was in effect for almost 18 months, from March 3rd, 1992 until September 9th, 1993.

On June 5th, 1992, the Commission investigator telephoned the Liberty Net phone number and heard a message referring callers to a new number of the Canadian Liberty Net "in exile" where they could "say exactly what we want without officious criticism and sanction". This new number was rented from a telephone company in the state of Washington, in the United States. Callers to that number then had access to a similar menu of messages as had been available prior to the issuance of Muldoon J. order of March 3rd. Indeed, Liberty Net admitted before the Court of Appeal that some of those messages where specifically covered by the injunction, but they contended that the messages were not in breach of the order because they emanated from a source outside Canada, and thus outside of the jurisdiction of the Federal Court.

. . . .

The appellants second ground of attack is that the contempt order is inapplicable because it seeks to restrain conduct taking place outside Canada, and, therefore, beyond the territorial jurisdiction of the Federal Court of Canada. This argument is misguided. The violation being impugned here is not the existence of the phone number in the United States without more, but rather the combined effect of that American phone number with the offending messages, and the referral message to that phone number on Liberty Net's old line. The gravamen of the violation of the order is the communication of the offending messages; that communication takes place by virtue of the advertisement on the Canadian phone line and the broadcast of the message on the American phone line. The former element took place "by means of the facilities of a telephone communication undertaking within the legislative authority of Parliament", as provided for under Section 13 of the Human Rights Act. As long as at least part of an offense has taken place in Canada, Canadian courts are competent to exert jurisdiction.

Human Rights Commission v. Canadian Liberty NetA-339-92 (T-209-92) Canadian Liberty Net and Tony McAleer (alias Derek J. Peterson) (Appellants)

v.

Canadian Human Rights Commission (Respondent)

Indexed as: Canada (Human Rights Commission)v. Canadian Liberty Net (C.A.)

Court of Appeal, Pratte, Strayer and Linden JJ.A." Vancouver, December 6, 1995; Ottawa, January 25, 1996.

Federal Court jurisdiction " Trial Division " Where complaint filed with CHRC, no authority in FCTD under Human Rights Act or Federal Court Act to issue interlocutory injunction before Human Rights Tribunal has rendered decision " Federal Court Act, ss. 25, 44 considered " Human Rights Act, s. 13 not nourishing bare statutory grant of general authority of Federal Court to grant injunction.

Human rights " CHRA, s. 13 (proscribing telephonic hate messages) considered " Where complaint filed with CHRC, FCTD without jurisdiction to issue interlocutory injunction before Human Rights Tribunal has made finding of violation of Act, s. 13(1).

Injunctions " Telephonic hate messages " Where complaint filed with CHRC, FCTD without jurisdiction to issue interlocutory injunction before Human Rights Tribunal has made finding of violation of Human Rights Act, s. 13(1).

In December 1991, complaints were filed with the Canadian Human Rights Commission under section 13 of the Canadian Human Rights Act alleging that Canadian Liberty Net operated a telephonic hate message system. The Commission requested that a Human Rights Tribunal be established to hear the complaints and filed an originating notice of motion in the Federal Court, Trial Division to obtain an interlocutory injunction to enjoin the appellants from communicating such messages until a final order was rendered by the Tribunal. The Trial Division granted this application in a formal order on March 27, 1992. The Tribunal began its hearings in May 1992, but did not render its decision until September 1993. It determined that subsection 13(1) of the Human Rights Act had been breached and issued a cease and desist order against the appellants under subsection 54(1) of the Act. This was an appeal from the March 27 injunction order.

This appeal raised the important question as to whether courts should assume authority to enforce statutory prohibitions by interlocutory injunctions where the legislature has specifically provided a scheme of administrative enforcement which does not include interim remedies.

Held, the appeal should be allowed.

Per Strayer J.A.: The question as to the Court's authority to grant an injunction in these circumstances could be disposed of on the basis of whether there was any implied grant of authority for any court to intervene in the operation of the Canadian Human Rights Act at this stage.

The conditions of Federal Court jurisdiction were stated by the Supreme Court of Canada in ITO"International Terminal Operators Ltd. v. Miida Electronics Inc. et al.: (1) statutory grant of jurisdiction; (2) existing body of federal law essential to disposition of case; (3) "law of Canada".

While there was no dispute that the Federal Court Trial Division could in appropriate cases grant the remedy of interlocutory injunction, that it had in personam jurisdiction over residents of Canada and that the relevant body of federal law, section 13 of the Canadian Human Rights Act, was a valid enactment by Parliament, the issue to be addressed was whether there had been a statutory grant of authority to issue an injunction in these circumstances and whether the relevant body of federal law could be said to "nourish" that grant.

Section 44 of the Federal Court Act could not be taken to authorize the grant of an interlocutory injunction where there was no underlying legal right to be enforced. Section 25 granted the Trial Division original jurisdiction between subject and subject "in any case in which a claim for relief is made or a remedy is sought under . . . the laws of Canada".

The question became whether an interlocutory injunction in these circumstances was a relief or remedy provided by the Canadian Human Rights Act and whether the Act could be said to "nourish" the grant of authority, in the abstract, to issue injunctions. Section 13 created no right in the Commission or anyone else to obtain a prior restraint of such communications pending a final determination of their legality. In Canada (Human Rights Commission) v. Taylor , only four of the seven judges of the Supreme Court of Canada found that the limitation on freedom of expression in section 13 of the Canadian Human Rights Act was justified under section 1 of the Charter and declared the section valid. Such a narrow margin militates against there being an implied authority for the courts to issue interlocutory orders to stop communications prior to a full hearing by a tribunal. In the absence of any express conferral of jurisdiction on the Federal Court to grant an interlocutory injunction pending a determination by a tribunal under subsection 13(1), the availability of a "relief" or "remedy", "by virtue of" this law of Canada (in the terminology of section 25 of the Federal Court Act ) could not be implied. Nor could the existence of the prohibition against telephonic hate messages in the Canadian Human Rights Act give rise to some implied right of action based in federal law, even if not expressly stated in the Act itself, a right which could be enforced by injunction. Whereas this Court has specifically held that it cannot make a finding that there has been a discriminatory practice within the meaning of the Act for purposes of issuing a permanent injunction, the logic of the respondent's position would equally lead to the conclusion that the Trial Division can issue an injunction in the case of any discriminatory practice proscribed by the Canadian Human Rights Act, whether real or apprehended.

In the instant case, the Tribunal took more than one year to render a decision after hearing the evidence. If tribunals cannot be caused to act more quickly and interim relief is required, then the Act should be amended to authorize either the Tribunal or the Federal Court Trial Division to issue interlocutory orders. Whether this would be justifiable under section 1 of the Charter is another matter.

This finding was not an endorsation of the right of provincial superior courts to intervene by issuing interlocutory injunctions in such circumstances. The reasons for concluding that the Canadian Human Rights Act neither expressly nor implicitly contemplated any interlocutory remedies would equally preclude the intervention of provincial superior courts.

Per Pratte J.A.: The jurisdiction of the Trial Division, if it exists, must flow from sections 25 and 44 of the Federal Court Act.

Section 44 specifies that, in matters otherwise within its jurisdiction, the Court may grant the kinds of relief mentioned in the section. The source of the jurisdiction of the Court, therefore, must be found in section 25. That section empowers the Court to hear and decide "any case in which a claim for relief is made or a remedy is sought under or by virtue of the laws of Canada if no other court . . . has jurisdiction in respect of that claim or remedy".

Two conditions must be met: first, a claim must be made under a law of Canada and, second, there must be no court having jurisdiction in respect of the claim. As to the first condition, the Canadian Human Rights Act contains nothing indicating that Parliament ever contemplated that injunctions be issued to stop discriminatory practices while complaints were pending before the Human Rights Commission or a Human Rights Tribunal. As to the second condition, if by prohibiting certain discriminatory practices Parliament has impliedly authorized that injunctions be issued "to prevent a flouting of the law at an interlocutory stage", that implied jurisdiction could certainly be exercised by the provincial superior courts.

statutes and regulations judicially considered

Canada Labour Code, R.S.C., 1985, c. L-2.

Canadian Bill of Rights, S.C. 1960, c. 44, ss. 1(d), 2.

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, ss. 8, 9, 10, 11, 12, 13, 50(1), 52, 53(2), 54(1), 58.

Criminal Code, R.S.C. 1970 c. C-34, ss. 281.1 (as enacted by R.S.C. 1970, (1st Supp.), c. 11, s. 1), 281.2 (as enacted, idem).

Criminal Code, R.S.C., 1985, c. C-46, ss. 318, 319.

Divorce Act, R.S.C. 1970, c. D-8.

Exchequer Court General Rules and Orders, R. 242.

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 25.

Federal Court Act, R.S.C., 1985, c. F-7, ss. 18, 25, 44.

Federal Court Rules, C.R.C., c. 663, R. 469(3).

Law and Equity Act, R.S.B.C. 1979, c. 224, s. 36.

Ontario Human Rights Code, R.S.O. 1970, c. 318.

Saskatchewan Human Rights Code, S.S. 1979, c. S-24.1.

Supreme Court of Judicature Act, 1873 (U.K.), 36 & 37 Vict., c. 66, s. 25(8).

cases judicially considered

applied:

ITO"International Terminal Operators Ltd. v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752; (1986), 28 D.L.R. (4th) 641; 34 B.L.R. 251; 68 N.R. 241; Chief Constable of Kent v. V, [1983] Q.B. 34 (C.A.); R. in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205; (1983), 153 D.L.R. (3d) 9; [1983] 3 W.W.R. 97; 23 CCLT 121; 45 N.R. 425; Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181; (1981), 124 D.L.R. (3d) 193; 14 B.L.R. 157; 17 C.C.L.T. 106; 2 C.H.R.R. D/468; 81 CLLC 14,117; 22 C.P.C. 130; 37 N.R. 455; Lodge v. Minister of Employment and Immigration, [1979] 1 F.C. 775; (1979), 94 D.L.R. (3d) 326; 25 N.R. 437 (C.A.); Nintendo of America Inc. v. 131865 Canada Inc. (1991), 36 C.P.R. (3d) 346; 41 F.T.R. 236 (F.C.T.D.).

distinguished:

B.M.W.E. v. Canadian Pacific Ltd. (1994), 93 B.C.L.R. (2d) 176 (C.A.).

considered:

Siskina (Owners of cargo lately laden on board) v. Distos Compania Naviera S.A., [1979] A.C. 210 (H.L.); 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; Winmill v. Winmill, [1974] 1 F.C. 686; (1974), 47 D.L.R. (3d) 597; 5 N.R. 159 (C.A.); confg [1974] 1 F.C. 539; (1974), 45 D.L.R. (3d) 619 (T.D.).

referred to:

Canada (Human Rights Commission) v. Canadian Liberty Net, [1992] 3 F.C. 504; (1992), 56 F.T.R. 42 (T.D.); Canada (Human Rights Commission) v. Canadian Liberty Net, [1994] 3 F.C. 551 (C.A.); Canada (Human Rights Commission) v. Heritage Front, [1994] 1 F.C. 203; (1993), 68 F.T.R. 161 (T.D.); R. v. Keegstra, [1990] 3 S.C.R. 697; (1990), 114 A.R. 81; [1991] 2 W.W.R. 1; 77 Alta. L.R. (2d) 193; 61 C.C.C. (3d) 1; 3 C.P.R. (2d) 193; 1 C.R. (4th) 129; 117 N.R. 284; United Steelworkers of America, Local 5795 v. Iron Ore Company of Canada (1984), 45 Nfld. & P.E.I.R. 150; 5 D.L.R. (4th) 24; 132 A.P.R. 150 (C.A.); Burkart v. Dairy Producers Co-operative Ltd. (1990), 74 D.L.R. (4th) 694; 87 Sask. R. 241 (C.A.); Lamont v. Air Canada et al. (1981), 34 O.R. (2d) 195; 126 D.L.R. (3d) 266; 3 C.H.R.R. D/1128; 23 C.P.C. 169 (H.C.); Saskatchewan (Human Rights Commission) v. Bell (1991), 88 D.L.R. (4th) 71; [1992] 2 W.W.R. 1; 96 Sask. R. 296; 16 C.H.R.R. D/52; 92 CLLC 17,010 (Q.B.).

authors cited

Canada. House of Commons Debates, Vol. III, 2nd Sess., 30th Parl., February 11, 1977, at p. 2976.

Halsbury's Laws of England, Vol. 9, 4th ed., London: Butterworths, 1974.

Sharpe, Robert J. Injunctions and Specific Performance, 2nd ed., Toronto: Canada Law Book, 1993.

Spry, I.C.F. The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages, 4th ed., Toronto: Carswell Co., 1990.

APPEAL from an interlocutory injunction order issued by a judge of the Trial Division (Canada (Human Rights Commission) v. Canadian Liberty Net, [1992] 3 F.C. 155; (1992), 90 D.L.R. (4th) 190; 14 Admin. L.R. 294; 9 C.R.R. (2d) 330; 48 F.T.R. 285) prohibiting the appellants from communicating hate messages by telephonic means pending a final order by a Human Rights Tribunal. Appeal allowed.

counsel:

Douglas H. Christie for appellants.

Joseph J. Arvay, Q.C. for respondent.

solicitors:

Douglas H. Christie, Victoria, British Columbia, for appellants.

Arvay, Finlay, Victoria, British Columbia, for respondent.

The following are the reasons for judgment rendered in English by

Pratte J.A.: While I agree with my brother Strayer's elaborate reasons for judgment, I would rather reach the same result by a shorter route.

It is common ground that the jurisdiction of the Trial Division in this case, if it exists, must flow from sections 25 and 44 of the Federal Court Act [R.S.C., 1985, c. F-7].

Section 44, as I read it, does not enlarge the jurisdiction of the Court but merely specifies that, in matters otherwise within its jurisdiction, the Court may grant the kinds of relief mentioned in the section.1 The source of the jurisdiction of the Court, therefore, must be found in section 25.

That section, contrary to section 44, clearly confers a new jurisdiction on the Court. It empowers it to hear and decide "any case in which a claim for relief is made or a remedy is sought under or by virtue of the laws of Canada if no other court . . . has jurisdiction in respect of that claim or remedy".

In order for that grant of jurisdiction to be operative, two conditions must be met: first, a claim must be made under a law of Canada and, second, there must be no court having jurisdiction in respect of the claim. These requirements are clearly not fulfilled here. It is said that the claim is made under the Canadian Human Rights Act [R.S.C., 1985, c. H-6], but that Act contains nothing indicating that Parliament ever contemplated that injunctions be issued to stop discriminatory practices while complaints were pending before the Human Rights Commission or a Human Rights Tribunal. And if one assumes, as the Trial Judge has done, that by prohibiting certain discriminatory practices Parliament has impliedly authorized that injunctions be issued "to prevent a flouting of the law at an interlocutory stage", that implied jurisdiction could certainly be exercised by the provincial superior courts.

I would dispose of the appeal in the manner suggested by my colleague.

* * *

The following are the reasons for judgment rendered in English by

Strayer J.A.:

Relief Requested

This is an appeal of an injunction order issued by a judge of the Trial Division on March 27, 1992, prohibiting the appellants "from communicating or causing to be communicated, by telephonic means" certain messages. The order set out at length the recorded messages which had been available at the appellants' number by any one who dialled it, and prohibited their continued communication pending the disposition of complaints concerning such messages by a Human Rights Tribunal. The order went beyond this and prohibited the appellants from

. . . communicating or causing to be communicated by telephonic means any messages which denigrate, disparage, or mock persons by reason of their race, ancestry, national or ethnic origin, colour or religion, or just for being who they are or what they are in terms of ancestry or religion, (such as Jews or non Europeans, or non-European-descended persons). . . .

Facts

In December, 1991 a number of complaints were filed with the Canadian Human Rights Commission under section 13 of the Canadian Human Rights Act2 alleging that the appellant Canadian Liberty Net operated a telephonic hate message system. Section 13 provides as follows:

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.

(2) Subsection (1) does not apply in respect of any matter that is communicated in whole or in part by means of the facilities of a broadcasting undertaking.

(3) For the purposes of this section, no owner or operator of a telecommunication undertaking communicates or causes to be communicated any matter described in subsection (1) by reason only that the facilities of a telecommunication undertaking owned or operated by that person are used by other persons for the transmission of that matter.

It was alleged in the complaints that persons dialling Canadian Liberty Net's number in Vancouver could hear messages denigrating Jewish and non-white persons. According to the findings of the Trial Judge this telephone number was advertised in a small journal which claimed a readership of "12,000 and growing". By dialling this number one could listen to a "menu" of messages and choose to hear any or all of those messages by touching the right number.

Sometime between the filing of these complaints and the reasons of the learned Trial Judge issued on March 3, 1992 [[1992] 3 F.C. 155 (T.D.)] the Canadian Human Rights Commission had obviously considered the complaints and had requested that a Human Rights Tribunal be established to hear the complaints. The Tribunal had been named but had not yet met. Meanwhile on January 27, 1992 the Commission filed an originating notice of motion in the Federal Court, Trial Division to obtain an interlocutory injunction to enjoin the appellants from communicating or causing to be communicated such messages until a final order was rendered by the Human Rights Tribunal after hearing the complaints. The Trial Division granted this application in reasons dated March 3, 1992 and by entry of a formal order on March 27, 1992, the order now under appeal. The appellants had by then already filed a notice of appeal from that decision, albeit that no formal judgment had been entered.

The Tribunal did not begin its hearings until May 25, 1992. The Tribunal held a hearing of 5 days, partly in May and partly in August, 1992, finishing its hearing on August 27, 1992. It then reserved its decision which was not rendered for more than one year afterward, on September 9, 1993, with the result that the interlocutory order governed matters for almost eighteen months. The Tribunal decision determined that subsection 13(1) of the Canadian Human Rights Act had been breached and a cease and desist order was issued against the appellants under subsection 54(1) of that Act.

In the meantime the Commission applied on June 11, 1992 in the Federal Court, Trial Division for the issuance of a show cause order alleging contempt of court by the appellants through violations of the interlocutory injunction of March 27, 1992. They were found guilty of contempt on July 9, 1992 [[1992] 3 F.C. 504 (T.D.)] and sentence was imposed on August 26, 1992. That conviction and sentence were also appealed and that appeal was heard at the same time as the hearing of the appeal in this case from the interlocutory injunction [see [1996] 1 F.C. 787 (C.A.)].

The Tribunal having issued a cease and desist order in September, 1993 the respondent Commission applied on March 28, 1994 to this Court to have the injunction appeal quashed, essentially on the grounds of mootness and that the appeal was vexatious and conducted in bad faith by the appellants. A panel of this Court rejected that motion on May 27, 1994.3 The panel was of the view that the question was not moot and that the outcome could possibly have some effect on the decision in the contempt appeal. It also observed that even if the appeal were moot the issue of the jurisdiction of this Court which it raised was important and would probably arise again.4 Therefore it considered that the appeal should proceed.

Issues

In my view this appeal raises an important question as to whether courts should assume authority to enforce statutory prohibitions by interlocutory injunctions where the legislature has specifically provided a scheme of administrative enforcement which does not include interim remedies.

The appellants raise several issues in asserting that the interlocutory injunction should be set aside. For reasons which will appear below, I think it only necessary to refer to their argument that the Federal Court has no authority under the Canadian Human Rights Act or the Federal Court Act to issue an interlocutory injunction before a Human Rights Tribunal has made a finding of a violation of subsection 13(1) concerning telephonic hate messages.

This matter of authority was also raised at the hearing before the learned Trial Judge. He based his findings that the Federal Court Trial Division could grant an injunction in these circumstances in part on a consideration of the powers of a superior court "to prevent apprehended flouting of the law" and to grant "free-standing injunctions" regardless of whether an action has been commenced in the Court or indeed could be brought, and regardless of whether the Court could give a permanent remedy. In his view it matters not that a court could not make a final determination of the question: it can still make an interim determination and issue an injunction if it apprehends that the law is not being observed. I believe these issues need not be addressed at length as the matter can be disposed of on the question of whether there was any implied grant of authority for any court to intervene in the operation of the Canadian Human Rights Act at this stage.

I shall therefore address the question of whether there was any relief or remedy authorized by federal law in these circumstances. The Trial Judge in this respect relied on sections 25 and 44 of the Federal Court Act5 which will be discussed below.

Analysis

The Trial Judge commenced his analysis of the Court's authority by relying on the majority judgment written by McIntyre J. in the Supreme Court decision in ITO"International Terminal Operators Ltd. v. Miida Electronics Inc. et al.6 He stated the conditions of Federal Court jurisdiction as follows:

1. There must be a statutory grant of jurisdiction by the federal Parliament.

2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.

3. The law on which the case is based must be "a law of Canada" as the phrase is used in s. 101 of the Constitution Act, 1867 .

It is not in dispute that in principle the Federal Court Trial Division can in appropriate cases grant the remedy of an interlocutory injunction, and that it has in personam jurisdiction over those such as the appellants who are resident in Canada. Nor is it disputed that the relevant body of federal law, section 13 of the Canadian Human Rights Act, is a valid enactment by Parliament relating to the use of a federally-regulated telephone undertaking. The issue to be addressed, in my view, was whether there has been a statutory grant of authority to issue an injunction in these circumstances and whether the relevant body of federal law can be said to "nourish" that grant. It is, perhaps, debatable as to whether this is strictly speaking a "jurisdictional" issue or whether it is a question of law, namely the correct interpretation of the rights and remedies provided by the Canadian Human Rights Act.

The Trial Judge found the necessary statutory grant of authority, including apparently a regime of rights prescribed by a federal law which would nourish that grant. As there is no such express grant of authority in the Canadian Human Rights Act to issue such an injunction it is necessary to consider the provisions of the Federal Court Act relied on by the Trial Judge for this purpose. Sections 25 and 44 of the Federal Court Act provide as follows:

25. The Trial Division has original jurisdiction, between subject and subject as well as otherwise, in any case in which a claim for relief is made or a remedy is sought under or by virtue of the laws of Canada if no other court constituted, established or continued under any of the Constitution Acts, 1867 to 1982 has jurisdiction in respect of that claim or remedy.

. . .

44. In addition to any other relief that the Court may grant or award, a mandamus, injunction or order for specific performance may be granted or a receiver appointed by the Court in all cases in which it appears to the Court to be just or convenient to do so, and any such order may be made either unconditionally or on such terms and conditions as the Court deems just.

He also apparently considered that the general grant of authority to issue injunctions was, in this case, nourished by the provisions of section 13 of the Canadian Human Rights Act which prohibits the use of federally-regulated telephones for communicating hate messages.

Dealing first with section 44 it appears to me that this provision had its origins in the history of the different remedies available in English courts of common law and equity prior to the Supreme Court of Judicature Act, 1873.7 The purpose of that Act was to amalgamate into the Supreme Court of Judicature the many existing courts of common law and equity and to merge their systems of remedies. Injunctions were of course originally available only in courts of equity. Subsection 25(8) of the Supreme Court of Judicature Act, 1873 provided as follows:

25. . . .

(8.) A mandamus or an injunction may be granted or a receiver appointed by an interlocutory Order of the Court in all cases in which it shall appear to the Court to be just or convenient that such Order be made; and any such Order may be made either unconditionally or upon such terms and conditions as the Court shall think just . . . .

It will be noted that the language is in many respects identical to that of section 44 of the Federal Court Act. The 1873 provision was confined to interlocutory injunctions while section 44 is not so confined. At one time it was observed in the House of Lords8 that the fact that subsection 25(8) only authorized interlocutory injunctions meant that there had to be an action "actual or potential" to which an "interlocutory" order would be incidental. Section 44 of the Federal Court Act does not on its face limit the grant of injunctions to actions real or potential in the Court. However, Rule 469 of the Federal Court Rules [C.R.C., c. 663] governs the issue of interlocutory injunctions and subsection 469(3) provides as follows:

Rule 469 . . . .

(3) The plaintiff may not make an application under this Rule before commencement of the action except in case of urgency, and in that case the injunction may be granted on terms providing for the commencement of the action and on such other terms, if any, as seem just.

It is not, however, necessary for present purposes to decide whether the injunctive power can only be exercised in the context of an action.9 The more fundamental issue, it appears to me, is whether section 44 can be taken to authorize the grant of an interlocutory injunction where there is no underlying legal right to be enforced. In England the successor legislation continuing the 1873 provision, which was limited to authorizing interlocutory injunctions, was later modified so as to remove that limitation. Counsel for the respondent, and the Trial Judge, relied on the reasons of Lord Denning M.R. in Chief Constable of Kent v. V10 where he found this amendment to have eliminated the need for either an action or a legal or equitable right to be enforced as prerequisites to the issue of an interlocutory injunction. In his view the only remaining precondition appeared to be that the applicant have a "sufficient interest" to ask for an injunction. It is important to note, however, that neither of the other two judges constituting the panel in this case agreed with the learned Master of the Rolls on this point. Both were of the view that such injunctions can only be issued "in the enforcement or protection of a legal or equitable right"11 As Donaldson L.J. said [at page 45]:

Were it otherwise, every judge would need to be issued with a portable palm tree.

I believe the same limitation must be read into the grant of the injunctive power in section 44 of the Federal Court Act.12

The more critical question then is the meaning of section 25, particularly where it grants the Trial Division original jurisdiction between subject and subject

25. . . . in any case in which a claim for relief is made or a remedy is sought under or by virtue of the laws of Canada . . . . [Emphasis added.]

In other words, was an interlocutory injunction in these circumstances a relief or remedy provided by the Canadian Human Rights Act? Can that Act be said to "nourish" the grant of authority, in the abstract, to issue injunctions? It is agreed on all sides that the only specific relief or remedy provided by the Act is the processing of a complaint under subsection 13(1) by the Commission, including investigation and possible settlement efforts, with an ultimate possibility of reference to a Human Rights Tribunal. The Tribunal is obliged to conduct a hearing and if it is satisfied after a full hearing that there has been a discriminatory practice within the meaning of subsection 13(1) it can, pursuant to subsections 53(2) and 54(1) of the Act, order that the discriminatory practice cease (there also being a possibility that the Tribunal might order some kind of affirmative action program where relevant). The Act specifically precludes a tribunal from ordering compensation in these cases and tribunals cannot impose penalties in any case. In spite of these carefully limited sanctions should it nevertheless be assumed that Parliament, at least implicitly, has authorized interlocutory measures to stop the communication of messages before they are determined by a tribunal to be in contravention of subsection 13(1)? To answer this question I believe it is necessary to look at the context in which subsection 13(1) was adopted.

On its face this subsection appears somewhat anomalous in relation to the rest of the Act. The Act generally deals with discrimination in the provision to the public of goods, services, facilities or accommodation, commercial premises or residential accommodation, and in employment matters. The only other provisions in the Act dealing with messages are sections 8 and 12 which involve the use of application forms or notices which would indicate an intention to commit a discriminatory practice in respect of one of these matters. Subsection 13(1) is the only provision dealing with communications as such. It just applies to communications by telephone, not by broadcasting or newspapers. It is limited to repeated communications, and then only to such communications as are likely to expose a person or persons to hatred or contempt by reason of them being identifiable on the basis of a prohibited ground of discrimination (i.e. race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability, or conviction for which a pardon has been granted). It appears that section 13 was designed to deal with a special problem for which it was felt no other law was entirely adequate.

The ordinary laws of defamation would not normally prevent such messages as they do not defame any particular person. Further the courts have traditionally been reluctant to grant interlocutory injunctions with respect to apprehended defamation, in part because these have been regarded as a prior restraint of freedom of speech. Traditional "balance of convenience" tests for the issue of injunctions are sometimes thought not to be appropriate in the case of attempts to enjoin defamation, the preference apparently having been to remedy defamation after it is proven.13

Further, it appears that the Criminal Code provisions concerning hate propaganda were thought not to apply to this kind of message. It is interesting to note that on second reading of the bill which resulted in the Canadian Human Rights Act the Minister of Justice had this to say concerning present section 13.

As a further protection against racism, the bill contains a measure proscribing the dissemination of hate over the telephone. I think those of us who were here in parliament at the time, felt that we had dealt with this issue in the amendments to the Criminal Code which were passed relating to hate, but new practices have emerged. Under this bill the sending of repeated hate messages over federally-regulated telephones would be prohibited. The measure is more rigorous than section 281.2 of the Criminal Code, but it avoids"or I have endeavoured to draft it in such a way as to avoid"interference with legitimate expression of opinion.14

This indicates not only the "mischief" which the section was intended to control"hate telephone messages"but also the "mischief" it was designed to avoid"undue restraint on freedom of expression. The hate propaganda sections15 of the Criminal Code had been adopted in 1970 prior to the adoption of the Canadian Human Rights Act, which came into force on July 14, 1977. Those sections dealt with advocacy of genocide, communication in public places of statements inciting hatred, and communication of such statements elsewhere other than in private conversations. The sections specifically provided for a number of defences, and of course successful prosecutions for statements like those involved in the present case would require proof of intent16 and proof beyond a reasonable doubt.

Presumably then section 13 of the Canadian Human Rights Act was adopted to extend limitations on hate messages beyond that which the law was then thought to provide, as indicated by the Minister. The section is not criminal law but a regulation of the use of a federally-controlled undertaking. Parliament adopted a measured, deliberate, approach involving the use of the investigation and mediation provisions of the Canadian Human Rights Act together with a possible Tribunal disposition. While this regime did not involve proof of intent it provided sanctions which could be imposed only after a full hearing by an independent human rights tribunal, sanctions which included no penalty and no compensation but essentially only the prohibition of future such communications. As the Supreme Court observed of this regime in Canada (Human Rights Commission) v. Taylor:17

. . . the conciliatory nature of the human rights procedure and the absence of criminal sanctions make s. 13(1) especially well suited to encourage reform of the communicator of hate propaganda.

No prior restraint of hate communications was specifically provided by Parliament.

In short, Parliament sought to control acts which were probably not otherwise prohibited, howsoever reprehensible, and it only imposed limited controls. It created no right in the Commission or anyone else to obtain a prior restraint of such communications pending a final determination of their legality.

It is apparent from the Minister's statement that this measured approach was thought to be necessary in order to respect, as much as possible, freedom of speech. It is true that section 13 was adopted before the advent of the 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]] but it was enacted when the Canadian Bill of Rights18 was in force. The Canadian Bill of Rights [section 2] required every Act of Parliament to "be so construed and applied as not to abrogate, abridge or infringe . . . any of the rights or freedoms herein recognized and declared". Among those freedoms was, in paragraph 1(d ), "freedom of speech". Parliament was obviously trying to adopt a regime for some measure of control over telephone hate messages which the Commission, human rights tribunals, and the Federal Court on judicial review, could, as they were obliged to do by the Canadian Bill of Rights , construe and apply in a manner consistent with freedom of speech.19 That freedom of speech was a legitimate concern has since been made evident by the 1990 decision of the Supreme Court of Canada in the Taylor case.20 There the validity of section 13 was under attack as infringing the freedom of expression guaranteed by paragraph 2(b) of the Canadian Charter of Rights and Freedoms. All seven judges agreed that section 13 does indeed infringe freedom of expression. However four of the seven found section 13 to be justified under section 1 of the Charter. While noting that section 13 was broader in its application than the Criminal Code hate propaganda provisions, by not requiring an intent to incite hatred or contempt, the majority observed that nevertheless the procedures and sanctions provided by the Canadian Human Rights Act involved a less intrusive limitation on freedom of speech. As Dickson C.J. stated:

. . . operating in the context of the procedural and remedial provisions of the Canadian Human Rights Act, s. 13(1) plays a minimal role in the imposition of moral, financial or incarcerating sanctions, the primary goal being to act directly for the benefit of those likely to be exposed to the harms caused by hate propaganda. It is therefore my opinion that the degree of limitation imposed upon the freedom of expression by s. 13(1) is not unduly harsh, and that the third requirement of the Oakes proportionality approach is satisfied.21

However three of the seven judges found the limitation on freedom of expression to be disproportionate and would have declared section 13 to be invalid.

The result in the Supreme Court, I believe, demonstrates the reason for the very cautious approach taken by Parliament in section 13 to remedy telephone hate messages within the context of the remedial provisions of the Canadian Human Rights Act. It also militates against there being an implied authority for the courts to issue interlocutory orders to stop communications prior to a full hearing by a tribunal. An interlocutory injunction can be obtained, after all, on affidavit evidence and merely on the basis that a "serious issue" has been raised as to the propriety of the messages. The violation of an injunction based on such evidence involves criminal sanctions, something not contemplated by the Act until a full hearing by a tribunal, its determination of a violation of subsection 13(1), the issue of a prohibitory order, and the violation of that order. Only at this stage does the Act contemplate contempt of court proceedings being taken.

For these reasons I find it difficult, in the absence of any express conferral of jurisdiction on the Federal Court to give an interlocutory injunction pending a determination by a tribunal under subsection 13(1), to imply the availability of a "relief" or "remedy", "by virtue of" this law of Canada (in the terminology of section 25 of the Federal Court Act ). That is, the Canadian Human Rights Act does not, in my view, nourish the bare statutory grant of general authority of this Court to employ the remedy of injunction. It creates no right in anyone which can be enforced by an interlocutory injunction.

I believe the situation is not unlike that facing this Court in Winmill v. Winmill.22 That case concerned the possible jurisdiction of the Federal Court Trial Division to grant a divorce under the Divorce Act.23 That Act created the right to divorce and specified the grounds, matters undoubtedly within Parliament's authority. It gave jurisdiction to certain provincial courts to grant divorce provided that either the petitioner or the respondent had been ordinarily resident in that province for a period of at least one year. As the parties in that case had not been so resident, the plaintiff brought an action in the Federal Court Trial Division [Winmill v. Winmill, [1974] 1 F.C. 539] relying on section 25 of the Federal Court Act [R.S.C. 1970 (2nd Supp.), c. 10], it being argued that since no other court in Canada had jurisdiction to grant a divorce to parties who had not been resident for at least one year in a province, the Federal Court Trial Division must have that power. The Trial Division and the Federal Court of Appeal rejected that proposition, Thurlow J. stating as follows:

. . . there is no substantive law of divorce a vinculo except that enacted by the Divorce Act, and the substantive right created by that Act is expressly made subject to section 5, which authorizes the presentation of a petition only to particular provincial superior courts and prescribes as conditions that the petitioner or spouse be resident in the province for a year immediately before the presentation of the petition. In my opinion (assuming for this purpose that divorce jurisdiction could otherwise be presumed to be vested in the Federal Court, which is at best doubtful), it "specially appears" from this that divorce was intended by Parliament to be out of the jurisdiction of the Federal Court, and this interpretation is, I think, reinforced by the special provision of paragraph 5(2)(b ) which confers jurisdiction on the Federal Court in the particular circumstances therein defined.24

(The "particular circumstances" referred to, where the Federal Court was given jurisdiction, involve situations where both parties present a petition for divorce in different provinces on the same day.) Similarly in the present case while the Canadian Human Rights Act provides a recourse or remedy through the processing of a complaint under subsection 13(1) and the ultimate issue of a prohibitory order by a tribunal issued after a full hearing. It is not to be inferred from section 25 of the Federal Court Act that a similar, though interim, remedy is obtainable in the Federal Court Trial Division.

Nor can the existence of the prohibition against telephonic hate messages in the Canadian Human Rights Act give rise to some implied right of action based in federal law, even if not expressly stated in the Act itself, a right which could be enforced by injunction. First, it may be observed generally that the breach of a statute does not automatically give rise to a right of action.25 More specifically, it has been held by the Supreme Court that human rights legislation does not by implication give rise to new civil causes of action where a comprehensive remedial scheme is provided. In the case of Seneca College of Applied Arts and Technology v. Bhadauria26 there was alleged discrimination by way of denial of an employment opportunity on the alleged ground of racial origin. The alleged victim sued in tort for damages and the Ontario Court of Appeal held that a new tort had been created at common law based on the public policy expressed in the Ontario Human Rights Code [R.S.O. 1970, c. 318], legislation very similar to the Canadian Human Rights Act. The Supreme Court on appeal held that there was no such right of action created: the legislature of Ontario had provided quite specifically for both the right in law not to be discriminated against, and the remedies, including compensation, for the denial of such a right. As Laskin C.J. stated:

In the present case, the enforcement scheme under The Ontario Human Rights Code ranges from administrative enforcement through complaint and settlement procedures to adjudicative or quasi-adjudicative enforcement by boards of inquiry. The boards are invested with a wide range of remedial authority including the award of compensation (damages in effect), and to full curial enforcement by wide rights of appeal which, potentially, could bring cases under the Code to this Court. The Ontario Court of Appeal did not think that this scheme of enforcement excluded a common law remedy, saying in the words of Wilson J.A. (which I repeat):

Nor does the Code, in my view, contain any expression of legislative intention to exclude the common law remedy. Rather the reverse since s. 14(a) appears to make the appointment of a board of inquiry to look into a complaint made under the Code a matter of ministerial discretion.

I would have thought that this fortifies rather than weakens the Legislature's purpose, being one to encompass, under the Code alone, the enforcement of its substantive prescriptions.27

The logic of the respondent's position would equally lead to the conclusion that the Trial Division can issue an injunction in the case of any discriminatory practice proscribed by the Canadian Human Rights Act, whether real or apprehended. However this Court has specifically held that it cannot make a finding that there has been a discriminatory practice within the meaning of that Act for purposes of issuing a permanent injunction. As Le Dain J.A. stated:

The Court cannot make a finding that there has been a discriminatory practice within the meaning of the Canadian Human Rights Act. The jurisdiction to make such a finding has been confided to the specialized agency and tribunals provided for by the Act. Such a finding involves a question of fact to be determined on the basis of an investigation by the Commission and a hearing by a Human Rights Tribunal.28

While this case did not involve a request for an interlocutory injunction it appears to me that the logic upon which it is based"namely that a specialized function has been given to the Tribunal to determine whether there was a discriminatory practice"is equally relevant to the question of whether the Federal Court Trial Division can issue an interim order merely based on the view that a serious issue has been raised as to the possibility of there being a discriminatory practice.

Needless to say, the conclusion that the Federal Court Trial Division cannot issue an interlocutory injunction in these circumstances is in no way an endorsation of the disgusting and offensive messages in question, which have now been found after a full hearing to violate subsection 13(1). I have no doubt that their continued communication pending the deliberations of a Human Rights Tribunal was frustrating to the victims and is harmful to the public interest in some measure. But the remedy for this type of situation might better be sought in an accelerated tribunal process. In the present case, for example, the Tribunal took more than one year to render a decision after hearing the evidence, a matter of some surprise considering that the basic facts as to the communication of the messages seem not to have been in dispute. If it is the considered view that tribunals cannot be caused to act more quickly in conducting a hearing and rendering a final decision, and that interim relief is required, then the Act should be amended to authorize either the Tribunal or the Federal Court Trial Division to issue interlocutory orders. Whether such measures would be considered justifiable under section 1 of the Charter might require further judicial consideration.

Nor is this finding an endorsation of the right of provincial superior courts to intervene by issuing interlocutory injunctions in such circumstances. The reasons expressed above for concluding that the Canadian Human Rights Act neither expressly or implicitly contemplated any interlocutory remedies in these circumstances would equally preclude the intervention of provincial superior courts. I recognize that there is some jurisprudence supportive of a provincial superior court role in supplementing statutory remedies. The most notable of these is B.M.W.E. v. Canadian Pacific Ltd.,29 a case strongly relied on by counsel for the respondent. There the British Columbia Court of Appeal upheld a decision of the British Columbia Supreme Court issuing an injunction to restrain the Canadian Pacific from altering its work schedule until a grievance under a collective bargaining agreement had been determined by an arbitrator. The collective agreement owed its validity to the Canada Labour Code [R.S.C., 1985, c. L-2] which provided no such interlocutory relief pending arbitration. I would make four comments on this case. Firstly, the Court of Appeal put some stress on the fact that the parties had agreed to arbitration, suggesting the Court was essentially assisting the carrying out of that agreement, a situation unlike the present case. Secondly, this decision is presently under appeal to the Supreme Court, leave having been granted.30 Thirdly, there is jurisprudence in other provinces to a different effect concerning the supplementation of statutory tribunal remedies by provincial court injunctions. In United Steelworkers of America, Local 5795 v. Iron Ore Company of Canada31 in the Newfoundland Court of Appeal, and in Burkart v. Dairy Producers Co-operative Ltd.32 in the Saskatchewan Court of Appeal, it was held that the courts could not intervene with an interlocutory injunction where the substantive resolution of a matter had been assigned to a statutory board. More specifically in Lamont v. Air Canada et al.33 the Ontario High Court held that a provincial superior court cannot grant an injunction to preserve the status quo while the plaintiff pursues a remedy in a federal statutory body (the Canadian Human Rights Commission) over which the provincial court has no control. It was stated there that the purpose of an interlocutory injunction is to preserve a right which the plaintiff may enforce in the court granting the injunction. Fourthly, the decision of the B.C. Court of Appeal in B.M.W.E. is based in part on section 36 of the Law and Equity Act of British Columbia34 which is similar to section 44 of the Federal Court Act, a provision which for reasons already expressed does not have the effect of giving a court jurisdiction where there is no legal or equitable right to protect.35

One other point requires comment. It was suggested by the learned Trial Judge in his exhaustive reasons that the Commission stands in the place of the Attorney General of Canada as the representative of the public interest, entitled to seek the enforcement of the law in court. As I understand the law, the Commission is an independent body which stands apart from the Attorney General of Canada. It takes no directions from the Attorney General and indeed may find itself as a party in opposition to the Attorney General in judicial review proceedings where, not uncommonly, departments of the Government of Canada are the object of Commission enforcement policies. Whether the Commission as such ever had standing to seek this injunction was not addressed in argument and I make no finding on that point.36 Certainly the only express authority given to the Commission to appear as a party is confined to tribunal hearings or to court applications to force disclosure of information to Commission investigators.37 Analogies to discretionary grants of standing to those seeking declarations of unconstitutionality are not relevant to standing to seek injunctions.38

I am therefore of the view that the Trial Division incorrectly interpreted the Canadian Human Rights Act as implicitly authorizing the grant of an interlocutory injunction. While the Court had jurisdiction in personam in respect of these appellants and while there was a valid federal law relevant to the issues, that law did not "nourish" the grant of an injunction in such circumstances.

Disposition

I am therefore of the view that the appeal should be allowed and the interlocutory injunction issued March 27, 1992 should be set aside.

As the appellants have succeeded on this appeal they are entitled to their costs here and in the Trial Division. However this Court, in another decision today in the same proceeding concerning the appeal from a contempt of court conviction for the violation of this injunction, has confirmed the original sentence as to the fines payable by the appellants. According to the court file, these fines have not been paid although the fines were not stayed by this Court at the time it stayed the order of imprisonment pending appeal of the contempt conviction. In my view it is open to the Court to preclude the appellants from taking any further step in this proceeding until they have paid the outstanding fines for contempt of court.39 I would therefore add to an order granting costs to the appellants the condition that they can take no further step in this Court in this proceeding, including obtaining an appointment for taxation or serving a copy of their bill of costs, until the fines have been fully paid.

Linden J.A.: I agree.

1 My brother Strayer correctly traces the origin of s. 44 back to the Supreme Court of Judicature Act, 1873 (U.K.), 36 & 37 Vict., c. 66. It is perhaps not without interest to mention that a more proximate source of that section is Rule 242 of the Exchequer Court General Rules and Orders, a rule which certainly did not confer any jurisdiction on the Court. That rule read as follows immediately before the coming into force of the Federal Court Act:

RULE 242

Injunctions and Receivors

An injunction may be granted or a receiver appointed by an interlocutory order of the Court in all cases in which it shall appear to the Court to be just or convenient that such order should be made, and only such order may be made ex parte or on notice. . . .

2 R.S.C., 1985, c. H-6.

3 [1994] 3 F.C. 551 (C.A.).

4 The Trial Division has issued similar interlocutory injunctions in at least one other case: see Canada (Human Rights Commission) v. Heritage Front, [1994] 1 F.C. 203 (T.D.).

5 R.S.C., 1985, c. F-7.

6 [1986] 1 S.C.R. 752, at p. 766.

7 (U.K.), 36 & 37 Vict., c. 66.

8 Siskina (Owners of cargo lately laden on board) v. Distos Compania Naviera S.A., [1979] A.C. 210 (H.L.), at p. 254.

9 By virtue of s. 18 of the Federal Court Act, the Court specifically has the power to issue injunctions in judicial review applications without an action being required.

10 [1983] Q.B. 34 (C.A.).

11 Ibid., at p. 45.

12 See generally Spry, The Principles of Equitable Remedies: Specific Performance, Injunctions, Rectification and Equitable Damages (4th ed., 1990), at pp. 323-326; Sharpe Injunctions and Specific Performance (2nd ed.), at paras. 1.1100-1.1140.

13 Sharpe, ibid., at paras. 5.40-5.70.

14 House of Commons Debates, Vol. III, 2nd Sess., 30th Parl., February 11, 1977, at p. 2976.

15 Ss. 281.1, 281.2, adopted in R.S.C. 1970 (1st Supp.), c. 11, s. 1, now ss. 318, 319 of the Criminal Code, R.S.C., 1985, c. C-46.

16 See e.g. R. v. Keegstra, [1990] 3 S.C.R. 697, at pp. 773-775 in relation to the offence of communicating statements witfully to promote hatred as proscribed by s. 319(2).

17 [1990] 3 S.C.R. 892, at p. 924.

18 S.C. 1960, c. 44.

19 This was recognized by the majority of the Supreme Court in Taylor, supra note 17, at p. 930.

20 Supra, note 17.

21 Ibid., at p. 940.

22 [1974] 1 F.C. 686 (C.A.).

23 R.S.C. 1970, c. D-8.

24 Supra note 22, at p. 690.

25 ;R. in right of Canada v. Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205. There may be cases where the Attorney General can, however, seek an injunction to prevent breaches of some statutes. See Sharpe, supra note 12, at paras. 3.190 to 3.390.

26 [1981] 2 S.C.R. 181.

27 Ibid., at p. 194.

28 ;Lodge v. Minister of Employment and Immigration, [1979] 1 F.C. 775 (C.A.), at p. 784.

29 (1994), 93 B.C.L.R. (2d) 176 (C.A.).

30 July 20, 1995, S.C.C. Bulletin 1995, at p. 1231.

31 (1984), 45 Nfld. & P.E.I.R. 150 (C.A.).

32 (1990), 74 D.L.R. (4th) 694 (Sask. C.A.).

33 (1981), 34 O.R. (2d) 195 (H.C.).

34 R.S.B.C. 1979, c. 224.

35 Supra, notes 7 to 12 and accompanying text.

36 But see Saskatchewan (Human Rights Commission) v. Bell (1991), 88 D.L.R. (4th) 71 (Sask. Q.B.), at pp. 94-99 where it was held that although injunctions are specifically authorized to prohibit conduct proscribed by the Saskatchewan Human Rights Code [S.S. 1979, c. S-24.1], the Commission has no sufficient interest to support standing to seek such an injunction.

37 Canadian Human Rights Act, ss. 50(1), 51, 58.

38 See e.g. Sharpe, supra, note 12, at para. 3.600.

39 Nintendo of America Inc. v. 131865 Canada Inc. (1991), 36 C.P.R. (3d) 346 (F.C.T.D.); see generally 9 Halsbury's Laws of England (4th ed., 1974), at para. 106.keywords:

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Kulbashian

Complainant:

Richard Warman

Name and Addresses of Respondents:

1) Northern Alliance

2) Jason Ouwendyk (leader, Northern Alliance)

website involved: www.northernalliance.ca

Address where incident occurred (if different from above):

Internet (see website above)

Allegation:

The respondents have discriminated against persons or groups of persons on the basis of religion, sexual orientation, race, colour, national or ethnic origin, and disability by repeatedly communicating messages through an Internet website that would likely expose Muslims, Hindus, Jews, gays and lesbians, East Asians, Hispanics, blacks, Arabs, and other non-whites, Somalians, Eastern Europeans, Roma (aka Gypsies), and the mentally and physically disabled to hatred and/or contempt contrary to section 13(1) of the Canadian Human Rights Act (CHRA).

Date of alleged conduct: 29 September 2002 to the Fall of 2005 (exact date uncertain).

Particulars:

Jason Ouwendyk as leader of the Northern Alliance and administrator of their website has posted or permitted to be posted extensive discriminatory material at the URL www.northernalliance.ca. He has done the same as the administrator of the website’s forum and using the pseudonym Jay.

I visited the Northern Alliance website numerous times between 29 September 2002 and the Fall of 2005. Although a broad range of discriminatory materials have been included with the evidence accompanying this complaint, representative samples in chronological order are listed below.

On 29 September 2002, the Northern Alliance website forum contained a posting by an individual using the name ‘Louis’ that alleged that most Communists were Jews in the early 1900s, that Jews were responsible for the Russian revolution, and that Jews control the media.

www.northernalliance.ca/forum/_discussion/0000000e.htm

On 14 July 2003, the Northern Alliance website contained a picture of a protest that members of the Northern Alliance had participated in against the London gay pride parade. A sign being held by one of their associates reads, “THERE IS A CURE FOR HOMOSEXUALITY – IT’S AIDS”. [sic]

www.northernalliance.ca/Gay_Parade_2003/Group_02.JPG

On 17 July 2003, the Northern Alliance forum contained postings that suggested the deaths of Jews during the Holocaust was grossly exaggerated but that at least the smaller number of those murdered was a “…damn good start!”

www.northernalliance.ca/board/viewtopic.php?t=155&start=30

On 18 July 2003, the Northern Alliance forum contained postings that suggested a child with the appearance of having Down’s syndrome was a “horrible creature” who should be used as fuel, was a “mongoloid”, and that all such persons should be euthanized.

www.northernalliance.ca/board/viewtopic.php?t=94

On 9 October 2003, the Northern Alliance forum contained a posting that stated, “how come every time I see a white chick with a darky i just want to kill them both!” [sic]

www.northernalliance.ca/board/viewtopic.php?t=31

On 20 October 2003, Jason Ouwendyk, using the pseudonym Jay, posted to the Northern Alliance forum a quote purporting to be from a Rabbi in 1952 advocating the elimination of the white race. It states:

Forbid the Whites to mate with Whites. The White women must cohabit
with members of the dark races, the White Men with black women. Thus
the White race will disappear, for the mixing of the dark with teh White
means the end of the White man, and our most dangerous enemy will
become only a memory. [sic]

www.northernalliance.ca/board/viewtopic.php?t=21

On 13 November 2003, the Northern Alliance forum contained postings that described Muslims as “shit”, “scum”, “worse than niggers”, suggest that we “need to get rid of all muslims in our homes!”, and that Jews and Arabs are both Semites and that “Semites MUST DIE!” [sic]

www.northernalliance.ca/board/viewtopic.php?t=76
On 17 November 2003, the Northern Alliance forum contained a posting suggesting that another poster was underestimating the threat that Muslims pose because they breed like rodents. The poster continues, “If you had a mulsim, a jew and only one bullet: who would you shoot??” [sic]

www.northernalliance.ca/board/viewtopic.php?t=76&postdays=0&postorder=as...

On 20 November 2003, Jason Ouwendyk, using the pseudonym Jay, posted to the Northern Alliance forum describing a black male as a “Nigger” and a Hispanic man as a “Spic”.

www.northernalliance.ca/board/viewtopic.php?t=84

From at least November 2003 to the Fall of 2005, the Northern Alliance website contained an extensive collection of photographs (included edited photos) that were designed to expose persons to hatred or contempt on the basis of religion, disability, race, colour, and/or national or ethnic origin. The introduction to the section was titled “They claim that race is only a matter of skin colour and we are all equal. We tend to disagree.” [sic] The URL addresses for some of the photos described a disabled, South Asian child as “APEBOY”, non-whites as “SHITSKINS”, blacks as “DARKIES”, and an East Asian man as a “GOOK”. The pages downloaded from the Northern Alliance website by the Internet Archive project on 5 March 2005 (www.archive.org) demonstrate that this material was available at least as late as March, 2005. The Internet Archive website states that it takes approximately 6-12 months before each new version of a downloaded website is added to their collection (see Internet Archive FAQ attached).

www.northernalliance.ca/cultures.htm and www.northernalliance.ca/photogallery with variations on both of these URLs for the assortment of images.

Complaint:

The respondents have discriminated against persons or groups of persons on the basis of religion, sexual orientation, race, colour, national or ethnic origin, and disability by repeatedly communicating messages through an Internet website that would likely expose Muslims, Hindus, Jews, gays and lesbians, East Asians, Hispanics, blacks, Arabs, and other non-whites, Somalians, Eastern Europeans, Roma (aka Gypsies), and the mentally and physically disabled to hatred and/or contempt contrary to section 13(1) of the Canadian Human Rights Act.

I thank-you in advance for your work on this matter.

Richard Warman
21 January 2006