Archive/File: people/z/zundel.ernst/federal_court/A-258-269-99.02
Last-Modified: 2000/06/05



                                                                  Date: 2000518

                                                               Docket: A-258-99
                                                                       A-269-99

CORAM:         ISAAC J.A.
               ROBERTSON J.A.
               SEXTON J.A.

BETWEEN:


           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

                                    - AND -

        ERNST ZUNDEL AND CANADIAN ASSOCIATION FOR FREE EXPRESSION INC,
                                                                    RESPONDENTS


SEXTON, J.A.

INTRODUCTION

[1]  This is an appeal from an application for judicial review of two rulings
made by the Canadian Human Rights Tribunal in the course of hearing a human
rights complaint made against Mr, Zuendel. In the first ruling (A-258-99), the
Tribunal ruled that counsel for Mr. Zuendel could not engage in a certain line
of cross-examination. In the second ruling (A-269-99), the Tribunal refused to
qualify a witness tendered by Mr. Zuendel as an expert witness. The issue in

                                                                        Page: 2

these appeals is whether Mr. Zuendel's applications for judicial review of the
Tribunal's rulings are premature on the basis that the rulings are
interlocutory decisions made during the course of the Tribunal's proceedings.
This set of reasons deals with both appeals and a copy will be placed in each
file.

BACKGROUND FACTS

[2]  Prior to the time that these applications for judicial review were
brought, the Canadian Human Rights Tribunal was inquiring into whether an
Internet website operated by Mr. Zuendel contravened s. 13(1) of the Canadian
Human Rights Act.

Ruling at issue in A-258-99

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

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

                                                                        Page: 3

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


Ruling at issue in A-269-99

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

[7]  Mr. Zuendel applied to the Federal Court-Trial Division for judicial
review of the Tribunal's two rulings.

                                                                        Page: 4

THE FEDERAL COURT - TRIAL DIVISION'S DECISION

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

ANALYSIS

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

[10]  Are the applications for judicial review premature? As a general rule,
absent jurisdictional issues, rulings made during the course of a tribunal
proceeding should not be challenged until the tribunal's proceedings have been
completed. The rationale for this rule is that such applications for judicial
review may ultimately be totally unnecessary: a complaining party may be
successful in the end result, making the applications for judicial review of no
value,

                                                                        Page: 5

Also, the unnecessary delays and expenses associated with such appeals can
bring the administration of justice into disrepute. For example, in the
proceedings at issue in this appeal, the Tribunal made some 53 rulings. If each
and every one of the rulings was challenged by way of judicial review, the
hearing would be delayed for an unconscionably long period. As this Court held
in In Re Anti-Dumping Act,< [1974] 1 F.C. 22 (C.A.), cited approvingly by this
Court in Canada v. Schnurer Estate, (1997] 2 F C 545> "a right, vested in a
party who is reluctant to have the tribunal finish its job, to have the Court
review separately each position taken, or ruling made, by a tribunal in the
course of along hearing would, in effect, be a right vested in such a party to
frustrate the work of the tribunal."

[11] This rule has been re-affirmed by many courts. Although her remarks were
made in the context of criminal proceedings, I think McLachlin J.'s remarks in
R. v. Seaboyer <[1991] 2 S.C.R. 577>  are apposite here:

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

[12]  In Szczecka v. Canada (Minister of Employment and Immigration),< (1993),
116 D.L.R (4th) 333 (F.C.A.).>  Letourneau J.A.

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held:

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

[13]  Similarly, in Howe v, Institute of Chartered Accountants of Ontario,
<(1994), 19 0.R. (3d) 483 (C.A.).> the Ontario Court of Appeal held that it was
"trite law that the court will only interfere with a preliminary ruling made by
an administrative tribunal where the tribunal never had jurisdiction or has
irretrievably lost it."

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

[15]  I disagree. The rulings at issue in these appeals are mere evidentiary
rulings made during the course of a hearing. Such rulings are made constantly
by trial courts and tribunals and if interlocutory appeals were allowed from
such rulings. justice could be delayed indefinitely.

                                                                        Page: 7

Matters like bias and a tribunal's jurisdiction to determine constitutional
questions or to make declaratory judgments have been held to go to the very
jurisdiction of a tribunal and have therefore constituted special circumstances
that warranted immediate judicial review of a tribunal's interlocutory
decision. By contrast, rulings
made by a coroner refusing to permit certain questions to be asked have been
considered not to result in the loss of jurisdiction sufficient to warrant
immediate judicial review of an interlocutory decision.
Similarly, in Doman v, British Columbia (Securities Commission),<(1995), 34
Admin. L.R. (2d) 102 (B.C.S.C.)>  Huddart J. (as she then was) held that "the
fact that an evidentiary ruling may give rise to a breach of natural justice is
not sufficient reason for a court to intervene in the hearing process."  Huddart J. added:

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

[16] In oral argument, counsel for Mr. Zuendel argued that had he waited until
the Tribunal determined the merits of the complaint, ss. 18.1(2) of the Federal
Court Act would have deprived him of the ability to seek judicial review of the
two rulings at issue in this appeal. Subsection 18. I (z) states:

     18.1(2) Time Limitation , An application for judicial review in respect of
     a decision or order of a

                                                                        Page: 8

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

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

CONCLUSION

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

                                                               "J Edgar Sexton'
                                                                           J.A.
"I agree
Julius A. Isaac J.A."
"I agree
J.T. Robertson J.A."

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