Judgments

[1994] 3 F.C. 551

A-339-92

Canadian Human Rights Commission (Applicant) (Respondent)

v.

Canadian Liberty Net and Tony McAleer (alias Derek J. Peterson) (Respondents) (Appellants)

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

Court of Appeal, Heald, Stone and Décary JJ.A.—Vancouver, May 11; Ottawa, May 27, 1994.

Practice — Appeals and new trials — Motion to quash appeal against interlocutory injunction restraining operation of alleged hate line until Canadian Human Rights Tribunal issuing final order — Appeal from order finding respondents in contempt of interlocutory injunction pending — Tribunal rendering final order — Commission arguing no live controversy as injunction order spent — Respondents contending Court lacking jurisdiction to issue injunction, therefore injunction nullity, could not be in contempt — Attack on injunction alive while attack on contempt order pending — Court not seized with contempt appeal — Jurisdiction issue not settled — Not clear alleged nullity of injunction order could not be of consequence on contempt appeal because interconnection between two appeals — Even if moot, appeal should proceed to settle important issues of jurisdiction, standing.

Federal Court jurisdiction — Motion under Federal Court Act, s. 52(a), (b), Federal Court Rules, R. 1100 to quash appeal against T.D. interlocutory injunction order — Respondents convicted of contempt of Court order — Whether appeal moot — Whether Court had jurisdiction to issue injunction — Direct attack on Federal Court jurisdiction — F.C. superior court with power to grant injunction but not court of general jurisdiction — Issue not settled — Appeal not moot — Even if moot, should proceed for several reasons including important issue of Court jurisdiction, standing of Canadian Human Rights Commission in fast developing area of law.

This was a motion to quash an appeal against an interlocutory injunction. Muldoon J. had granted the Commission’s application for an interlocutory injunction restraining Canadian Liberty Net from operating the alleged hate line until a final order was rendered in the proceedings before the Canadian Human Rights Tribunal. The appellants appealed from that judgment. Teitelbaum J. subsequently found that the appellants had breached the injunction order and were in contempt of Court. The appellants appealed from that order. The Tribunal then determined that the Canadian Human Rights Act, section 13 had been breached and made a cease and desist order under subsection 54(1). The appellants brought a motion to set aside the Tribunal’s decision but that motion was quashed for failure to file affidavit evidence on time. This motion to quash was based on the ground that there remained no live controversy because the injunction had been spent, the Tribunal having rendered its final order. The appellants contended that the injunction order could not be dissociated from the contempt order, which had also been appealed, because they could not have been found in contempt of an order which, they submitted, was a nullity as having been made by a Court which had no jurisdiction to issue it, and at the instance of a party, i.e. the Commission, that had no standing to ask for its issuance.

Held, the motion should be dismissed.

The Court must be satisfied beyond doubt that the appeal, if granted, would have no practical effect as between the parties before granting a motion to quash. The attack on the injunction order was still alive inasmuch as the attack on the contempt order was still pending. This motion to quash the injunction appeal was effectively a collateral attack on the contempt appeal. The Court was not seized with the contempt appeal, and the issue of collateral attack did not arise per se in the injunction appeal inasmuch as it was solely concerned with a direct attack on the injunction order.

As there was a direct attack herein on the jurisdiction of the Federal Court, which is a superior court having the authority to issue injunction orders, but which is not a court of general jurisdiction, it cannot be said that the issue has been settled. It will be up to the panel hearing the contempt appeal to settle it.

The interconnection between the injunction appeal and the contempt appeal was such that it was not absolutely clear that the alleged nullity of the injunction order could not be of any consequence on the pending contempt appeal. There may still be live controversy.

Even if moot, the injunction appeal should be allowed to proceed because the adversarial context was very much present; the issue was an important one of jurisdiction of this Court and of the Commission’s standing in a fast developing area of the law; it was unlikely that litigants would have the opportunity or the means to challenge in due course the jurisdiction of the Trial Division to issue this type of interlocutory injunction order at the request of the Commission; the issue will most certainly surface again and judicial economy will be best served if the issue is resolved now; and, in hearing this appeal, the Court will be playing its traditional role and not intruding into the realm of the legislative branch.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 13(1), 54(1).

Federal Court Act, R.S.C., 1985, c. F-7, s. 52(a),(b)(i).

Federal Court Rules, C.R.C., c. 663, RR. 1100, 1206.

CASES JUDICIALLY CONSIDERED

APPLIED:

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; (1989), 57 D.L.R. (4th) 231; [1989] 3 W.W.R. 97; 75 Sask. R. 82; 47 C.C.C. (3d) 1; 33 C.P.C. (2d) 105; 38 C.R.R. 232; 92 N.R. 110.

DISTINGUISHED:

Eastern Trust Company v. McKenzie, Mann & Co., [1915] A.C. 750; (1915), 22 D.L.R. 410; 31 W.L.R. 248 (P.C.); British Columbia (Attorney General) v. Mount Currie Indian Band, [1991] 4 W.W.R. 507; (1991), 54 B.C.L.R. (2d) 129; [1992] 1 C.N.L.R. 70; 47 C.P.C. (2d) 214 (S.C.).

CONSIDERED:

Canada (Canadian Human Rights Commission) v. Taylor, [1987] 3 F.C. 593; (1987), 37 D.L.R. (4th) 577; 9 C.H.R.R. D/4929; 29 C.R.R. 222; 78 N.R. 180 (C.A.); affd [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.

REFERRED TO:

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 (T.D.); Canada (Human Rights Commission) v. Canadian Liberty Net, [1992] 3 F.C. 504; (1992), 56 F.T.R. 42 (T.D.); Canadian Human Rights Commission v. Canadian Liberty Net and Peterson (No. 2) (1992), 56 F.T.R. 157 (F.C.T.D.); Khaki v. Canadian Liberty Net, [1993] C.H.R.D. No. 17 (QL); Can. Transport (U.K.) Ltd. v. Alsbury, [1953] 1 D.L.R. 385; (1952), 7 W.W.R. (N.S.) 49; 105 C.C.C. 20 (B.C.C.A.); affd sub nom. Poje v. A.G. for British Columbia, [1953] 1 S.C.R. 516; [1953] 2 D.L.R. 785; (1953), 105 C.C.C. 311; 17 C.R. 176; Leberry v. Braden (1900), 7 B.C.R. 403 (S.C.); Canada Metal Co. Ltd. et al. v. Canadian Broadcasting Corp. et al. (No. 2) (1974), 4 O.R. (2d) 585; 48 D.L.R. (3d) 641; 19 C.C.C. (2d) 218 (H.C.); affd (1975), 11 O.R. (2d) 167; 65 D.L.R. (3d) 231; 29 C.C.C. (2d) 325 (C.A.).

MOTION to quash an appeal against an interlocutory injunction based on lack of controversy as the injunction was spent. Motion dismissed.

COUNSEL:

Douglas H. Christie for appellants (respondents).

John L. Finlay for respondent (applicant).

SOLICITORS:

Douglas H. Christie, Victoria, for appellants (respondents).

Arvay, Finlay, Victoria, for respondent (applicant).

The following are the reasons for order rendered in English by

Décary J.A.: The respondent, the Canadian Human Rights Commission (the “Commission”), has brought a motion pursuant to paragraph 52(a) and subparagraph 52(b)(i) of the Federal Court Act [R.S.C., 1985, c. F-7] and Rule 1100 of the Federal Court Rules [C.R.C., c. 663] to quash the within appeal by the appellants against the interlocutory injunction of Muldoon J., the formal order for which is dated March 27, 1992.

A chronology of the events material to the motion is warranted at this stage.

Complaints were filed with the Commission alleging that telephonic messages communicated by Canadian Liberty Net (CLN) and Derek J. Peterson denigrated Jewish and non-white persons and that they were likely to expose persons to hatred or contempt by reason of prohibited grounds of discrimination, in violation of subsection 13(1) of the Canadian Human Rights Act[1] (the “Act”). As a result of the complaints, the Commission, on January 17, 1992, decided to request the president of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal (the “Tribunal”) to inquire into the complaints.

On January 27, 1992, the Commission filed an originating notice of motion in the Trial Division of this Court, seeking an interlocutory injunction restraining the CLN and their agents from operating the alleged hate line “until a final order is rendered in the proceedings before the Canadian Human Rights Tribunal.”[2]

On March 3, 1992 [[1992] 3 F.C. 155 (T.D.)], Muldoon J. granted the Commission’s application for an interlocutory injunction and on March 27, 1992, the formal injunction order issued.

On March 9, 1992, the appellants filed a notice of appeal from the judgment of Muldoon J. (the “injunction appeal”).

On May 25, 1992, the Tribunal began its hearings. That hearing proceeded from May 25 to May 29 and on August 24, 25 and 27, 1992. Following the hearing the Tribunal reserved its decision.

On June 11, 1992, the Commission filed a motion in the Trial Division seeking the issuance of a show cause order against the appellants ordering them to appear before the Court to show cause why they should not be condemned for contempt of court.

In an order and reasons for order delivered on July 9, 1992 [[1992] 3 F.C. 504 (T.D.)], Teitelbaum J. concluded that the appellants had breached the injunction order and were guilty of contempt of court in that regard.

On July 13, 1992, the appellants filed a notice of appeal from the judgment of Teitelbaum J. (the “contempt appeal”).

On August 26, 1992 [(1992), 56 F.T.R. 157 (F.C.T.D.)], Teitelbaum J. ordered that Tony McAleer (alias Derek J. Peterson) be committed to jail for a period of two months and that he also pay a penalty of $2,500 before his release from jail, failing which he serve a further one month in jail, and that CLN forthwith pay a penalty of $5,000.

On July 7, 1993, the Appeal Book prepared by the Registry of the Federal Court in accordance with Rule 1206 was filed and copies sent to the parties.

On August 10, 1993, the appellants filed their memorandum of fact and law in both the injunction appeal and the contempt appeal.

On September 9, 1993, the Tribunal rendered its decision [[1993] C.H.R.D. No. 17 (QL)], determining that subsection 13(1) of the Act had been breached and making a cease and desist order against the appellants under subsection 54(1) of that Act.

On September 28, 1993, the appellants filed an originating notice of motion in the Trial Division seeking to set aside the Tribunal’s decision.

On January 25, 1994, at the instance of the Commission, Tremblay-Lamer J. quashed that originating notice of motion in the Trial Division on the basis that the appellants had failed to file their affidavit evidence in due course. That judgment has also been appealed by the appellants.

On March 28, 1994, the Commission filed its motion to quash the injunction appeal. The grounds of the motion are two-fold: (1) there remains no live controversy or issue to be determined because the interlocutory injunction has been spent, the Tribunal having rendered its final order; (2) the appellants’ continuance of the appeal is vexatious and not in good faith. The appellants, on the other hand, contend that the appeal is not moot; they basically allege that the injunction order cannot be dissociated from the contempt order, which has also been appealed, because in their view they could not have been found in contempt of an order which, they submit, is a nullity as having been made by a court which had no jurisdiction to issue it and at the instance of a party, i.e. the Commission, that had no standing to ask for its issuance.

At the hearing, the Commission did not insist on the second ground. It is true that the appellants could have moved for an expedited hearing of their injunction appeal. Yet it is also true that they prepared their memoranda of fact and law in both the injunction appeal and the contempt appeal within one month of the receipt of the Appeal Book, and, as argued by their counsel, the appellants had no reason to believe that the Tribunal would require more than one year after the completion of the hearing to issue its reasons and therefore, no reasons to seek to expedite the hearing of an appeal which, if the Commission’s allegation of mootness is well founded, would have been moot in any event the very moment the decision came out, which could have been at any time. In the circumstances, bad faith was simply not demonstrated. On the other hand, the continuance of the appeal would only be vexatious if it were obvious that the appeal was moot, which brings us back, in reality, to the Commission’s first ground.

When dealing with a motion to quash such as the present one, the Court should be satisfied beyond doubt that the appeal, if granted, would have no practical effect as between the parties.

The Commission alleges that it is settled law that an injunction order, valid or not, must be obeyed until set aside and cannot be collaterally attacked in defending contempt proceedings relating to the wilful breach of the order. It relies on such cases as Eastern Trust Company v. McKenzie, Mann& Co.;[3] Can. Transport (U.K.) Ltd. v. Alsbury;[4] Leberry v. Braden[5] and British Columbia (Attorney General) v. Mount Currie Indian Band.[6] It could also have relied on the decision of this Court in Canada (Canadian Human Rights Commission) v. Taylor[7] and on Canada Metal Co. Ltd. et al. v. Canadian Broadcasting Corp. et al. (No. 2).[8] Counsel for the appellants conceded at the hearing that his clients were bound by the injunction order until that order was obeyed, but argued that his attack on the injunction order was still alive inasmuch as his attack on the contempt order was still pending.

I agree with counsel for the appellants.

First, it seems to me, what the Commission is really arguing in its motion to quash the injunction appeal is that the contempt appeal is without merit as being a collateral attack on the injunction order. Arguably, the Commission itself is in fact using its motion to quash the injunction appeal to collaterally attack the contempt appeal. The Court is not, of course, at the present stage, seized with the contempt appeal and the issue of collateral attack does not arise per se in the injunction appeal inasmuch as it is solely concerned with a direct attack on the injunction order.

Secondly, I am not prepared to hold at this stage and in these proceedings that the authorities quoted above, persuasive as they might be, are determinative of the issue of mootness. I note that Sir George Farwell, who wrote the judgment of the Privy Council in the Eastern Trust case[9] and Macdonald J., in the Mount Currie Indian Band case,[10] both insisted on the fact that the injunction order at issue had been granted by a superior court of general jurisdiction. More importantly, in Taylor, where the attack was not in effect against the jurisdiction of this Court to issue an injunction order but was against an alleged biased decision of the Canadian Human Rights Commission which, pursuant to section 43 of the Canadian Human Rights Act [S.C. 1976-77, c. 33], had been made an order of the Federal Court, Mahoney J.A. expressed himself as follows:[11]

The appellants’ argument could only be relevant in respect of an order that was a nullity. Here it is directed at an order which they say should be set aside but cannot say is a nullity. It is deemed in law to be an order of a superior court made within its jurisdictional competence as expressly provided by Parliament.

And in approving Mahoney J.A.’s reasoning, Chief Justice Dickson, noted the following:[12]

The narrow ratio of Mahoney J.’s reasons, however, hinged on the fact that the appellants had not sought to challenge the legitimacy of the Tribunal order directly, but rather had simply treated the order as void and attacked it collaterally in a contempt proceeding.

Here, we have a direct attack on the jurisdiction of the Federal Court, which is a superior court having the authority to issue injunction orders but which is not a court of general jurisdiction. It is likely that the reasoning that led to the Taylor decision will surface in the contempt proceedings attacking the jurisdiction of the Court to issue an injunction order, but I simply cannot say that the issue has been settled and it will be up to the panel hearing the contempt appeal to settle it.

The interconnection in the case at bar between the injunction appeal and the contempt appeal is such that I would hesitate to rule that it is absolutely clear that the alleged nullity of the injunction order could not be of any consequence on the contempt appeal which is pending. Is it totally inconceivable, for example, as suggested by their counsel, that the appellants’ penalty for contempt could be different were the injunction order found to be a nullity as having been issued by a court without jurisdiction to issue it? There may still be, yet, live controversy.

Had I reached the conclusion, in my application of the first part of the test set out by the Supreme Court of Canada in Borowski v. Canada (Attorney General),[13] that the injunction appeal was moot, I would nevertheless, in the exercise of my discretion, have allowed the appeal to move on. The adversarial context is very much present; the issue is an important one of jurisdiction of this Court and of standing of the Commission in an area of the law which is developing at a considerable speed; chances are that litigants will not have the possibility or the means to challenge in this Court in due course the jurisdiction of the Trial Division to issue this type of interlocutory injunction order at the request of the Commission; the issue will most certainly surface again, sooner than later, and judicial economy will be best served if the issue were to be resolved now; and finally, in hearing this appeal the Court will be strictly playing its traditional role and will not be intruding into the role of the legislative branch.

I would dismiss the motion to quash, with costs to the appellants. I would also urge the parties to take the necessary steps to have the injunction appeal and the contempt appeal heard together in the fall session of this Court.

Heald J.A.: I agree.

Stone J.A.: I agree.

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