League for Human Rights of B’nai Brith, Abrams v. Topham, Arthur, 2010 CHRT 14

Canadian Human Rights Tribunal

[1] This is a ruling concerning motions by the Respondents dated July 30, 2009 and September 2, 2009 for a stay of the proceedings in this matter.

[2] The complaint in this matter was filed by the Complainant on August 28, 2007. The complaint alleges that the Respondents communicated messages over the internet that were likely to expose persons identifiable as Jews and/or as citizens of Israel to hatred or contempt contrary to s. 13 (1) of the Canadian Human Rights Act (the CHRA). The complaints allege that the impugned conduct occurred in a manner that was ongoing.

[3] On November 17, 2008, the Commission, pursuant to s. 44 (3) (a) of CHRA requested the Canadian Human Rights Tribunal (the Tribunal) to institute an inquiry into the complaint.

[4] On September 2, 2009 the Tribunal released its decision in the matter of Warman v. Lemire 2009 CHRT 26. That case involved a complaint under s. 13 (1) of the CHRA. In his very comprehensive decision, Member Hadjis concluded:

... I have also concluded that s. 13 (1) in conjunction with ss. 54 (1) and (1.1) are inconsistent with s. 2 (b) of the Charter, which guarantees the freedom of thought, belief, opinion and expression. The restriction imposed by these provisions is not a reasonable limit within the meaning of s. 1 of the Charter.

[5] On October 1, 2009, the Commission applied to the Federal Court for judicial review of the Tribunal's decision in Warman v. Lemire (See FC file no. T-1640-09).

[6] In its public release commenting on its application for Judicial Review dated October 1, 2009, the Commission commented as follows:

The Commission applied for Judicial Review so that technical but important legal issues raised by the decision can be clarified. These issues go beyond this particular case and could have an impact on other administrative tribunals. As a result, the uncertainty created by the decision is not in the public interest and merits a binding decision by a higher court.

The application is based on two grounds. It is the Commission's view that:

(1) The Tribunal erred in law when it found that the manner by which the applicant exercises its statutory mandate could render section 13 of the Canadian Human Rights Act unconstitutional; and

(2) The Tribunal's findings of unconstitutionality also resulted from the adoption of subsections 54 (1) (c) and (1.1) of the Canadian Human Rights Act, subsequent to the Supreme Court of Canada's decision in Canada (Human Rights Commission) v. Taylor, 1990 CanLII 26 (SCC), [1990] 3 S.C.R. 892. The Tribunal erred in law when it refused to apply section 13 of the Act because a refusal to apply subsections 54 (1) (c) and (1.1) would have provided a sufficient remedy in respect of this ground.

[7] The parties filed with the Tribunal submissions with respect to the Respondents' motions. It is to be noted that the motions were filed prior to the Commission's application for Judicial Review in the Warman v. Lemire case.

[8] The Canadian Human Rights Tribunal does not possess the authority to grant a stay of the proceedings, however, it can adjourn a matter before it.

[9] I have reviewed the submissions of the parties and have concluded that it would be appropriate and would properly serve the interests of justice if this matter was adjourned. While the Supreme Court of Canada has ruled in Canada (Human Rights Commission) v. Taylor, 1990 CanLII 26 (SCC), 1990 3 S.C.R. 892 that s. 13 (1) of the CHRA is constitutional, the application now before the Federal Court seeks to bring clarity to this issue in view of the distinct factual and legal context giving rise to this Tribunal's decision in Warman v. Lemire. Clearly Member Hadjis' decision goes beyond the consideration alone of the penalty provisions in s. 54 of the CHRA, as he chose not to read out the penalty provisions and preserve s. 13 of the CHRA. It is now up to the Federal Court to determine the operability of s. 13 of the CHRA. This will achieve the clarity that the Commission has indicated and that I agree is desirable in order to allow the Tribunal to be able to determine this and other cases brought under s. 13 of the CHRA.

[10] For these reasons I hereby adjourn these proceedings sine die pending the final outcome in the Warman v. Lemire case.