T-2765-96
Between:
ERNST ZÜNDEL
Applicant
-and-
THE ATTORNEY GENERAL OF CANADA
Respondent
-and-
THE CANADIAN HUMAN RIGHTS COMMISSION
Intervenor
REASONS FOR ORDER
(Delivered from the Bench at Toronto, Ontario
on Wednesday September 17, 1997 as edited.)
ROTHSTEIN, J.:
This is an application by the Canadian Human Rights Commission (Commission) for an Order to compel the applicant to attend for cross-examination on his affidavits by counsel for the Commission. By the Order of Mr. Justice Denault of May 22, 1997, the Commission was granted Intervenor status and was given the opportunity to file evidence and to examine witnesses.1
Examinations were scheduled for September 15, 1997 at Toronto but at the commencement of examination by counsel for the Commission, counsel for the applicant objected and no examination took place, thus giving rise to this motion before the Court today.
The applicant says that the law as to the role and status of Intervenors and Tribunals and their right to participate in judicial review proceedings is to the effect that the Commission should not be able to cross-examine the applicant on his affidavits and that the Order of Mr. Justice Denault is a nullity. Numerous authorities were cited.
The arguments made by counsel for the applicant about the status and role of Intervenors and Tribunals on judicial review and the right of Intervenors to examine witnesses are arguments that should have been made before Mr. Justice Denault or on appeal of his Order. Counsel for the applicant concedes that neither course of action was taken. He says he was unable to do so for lack of time and resources.
However, that is not a justification that entitles the applicant to raise these arguments on this motion. This is not an appeal of the Order of Mr. Justice Denault and this Court cannot treat it as such. The Order of Mr. Justice Denault is clear and unambiguous. It entitles the Commission to file evidence and cross-examine witnesses.2 The applicant filed two affidavits as evidence in the judicial review proceeding. It is beyond doubt that the right to cross-examine witnesses granted to the Commission by Mr. Justice Denault includes the right to cross-examine the applicant on his affidavits.
An Order will go requiring the applicant to re-attend at his own expense for cross-examination on his affidavits sworn February 18 and February 20, 1997. Failure to attend will constitute grounds for an application to dismiss the application for judicial review.
Applicant's counsel requested a stay of this Order pending appeal. However the applicant has not demonstrated any serious issue or irreparable harm. The applicant says he will be forced to give evidence against his will that may be used against him in proceedings before a Human Rights Tribunal. However this case arises because the applicant has already filed affidavit evidence in these proceedings. He cannot now say that his right to remain silent is violated as a ground of avoiding a cross-examination when he has already filed direct evidence in his affidavits. Assuming that a right to silence applies in this case, he has already made the election not to remain silent by filing his affidavits. The stay application is dismissed.
With respect to costs this is a case of special circumstances. The arguments made by counsel for the applicant were arguments relative to an appeal of the Order of Mr. Justice Denault which, as I have said, the proceedings before me are not. There were no arguments on the merits of the applicant's motion. Therefore, I would grant the Intervenor Commission the sum of $1000 relative to costs incurred on the aborted cross-examination that did not take place on September 15, 1997. With respect to the proceedings today, I would order costs on a party-party basis to the Commission in the sum of $750. These sums are inclusive of disbursements. Costs of $1750 are payable forthwith.
"Marshall E. Rothstein"
Judge
Toronto, Ontario
September 17, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2765-93
STYLE OF CAUSE: ERNST ZÜNDEL
- and -
THE ATTORNEY GENERAL OF CANADA
-and-
| THE CANADIAN HUMAN RIGHTS |
COMMISSION
DATE OF HEARING: WEDNESDAY SEPTEMBER 17, 1997
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: WEDNESDAY SEPTEMBER 17, 1997
APPEARANCES:
Mr. Douglas Christie
For the Applicant
Ms. Marlene Thomas
For the Respondent
Mr. Mark J. Freiman
For the Intervenor
-2-
SOLICITORS OF RECORD:
Mr. Douglas H. Christie
810 Courtney St.,
Victoria, British Columbia
V8W 1C4
Toronto, Ontario
M5H 4B1
For the Applicant
George Thomson
Deputy Attorney General
of Canada
For the Respondent
McCarthy Tétrault
Barristers and Solicitors
Suite 4700
Toronto Dominion Bank Tower
Toronto-Dominion Centre
Toronto, Ontario
M5K 1E6
For the Intervenor
FEDERAL COURT OF CANADA
Court No.: T-2765-96
Between:
ERNST ZÜNDEL
Applicant
- and -
| THE ATTORNEY GENERAL OF |
CANADA
Respondent
-and-
| THE CANADIAN HUMAN RIGHTS |
COMMISSION
Intervenor
REASONS FOR ORDER
__________________
1 The Commission's motion before Mr. Justice Denault for Intervenor status requested the opportunity to file evidence and examine witnesses and the applicant therefore had notice of the request.
2 On judicial review evidence is tendered by affidavits and cross-examination on affidavits. There is nothing in the record before me indicating that this judicial review is not to proceed in that manner.