T-2765-96
B E T W E E N:
ERNST ZÜNDEL
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
GILES, A.S.P.:
In the motion before me, Canadian Human Rights Commission ("the Commission"), seeks to be added as an Intervenor and on page 4 of its Notice of Motion indicates that it wishes to participate as a full party with the opportunity to file evidence, examine witnesses and make submissions.
In the ordinary process of justice in our system when a tribunal's decision is being impugned, it is not a party to the impugning proceedings. However, where a tribunal has expertise which may cast some light imperceptible to ordinary mortals on a subject issue, the tribunal may be allowed to intervene see Ferguson Bus Line Ltd. v. A.T.U. Local 1374 [1900] 2 F.C. 586.
In Northwestern Utilities Ltd. v. Edmonton [1979] 1 S.C.R. 684, it was said that:
| The role of an administrative tribunal whose decision is at issue before the court is limited to explaining the record before the tribunal and to making representations with respect to jurisdiction. In this context, the term jurisdiction does not include a tribunal's failure to adhere to the rules of natural justice. |
In C.A.I.N.A.W, Local 14 v. Paccar of Can. Ltd., [1989] 2 S.C.R. 983, it was decided that an administrative tribunal has standing to make submissions explaining the record before the court and showing that it had jurisdiction to embark on the enquiry, and that it is not lost that jurisdiction through a patently unreasonable interpretation of its powers.
In Ferguson Bus Line Ltd. v. A.T.U. Local 1374 [1990] 2 F.C. 586, it was stated that:
| A challenge to the legislative jurisdiction of Parliament is not one to the tribunal's jurisdiction within the contemplation of the Northwestern Utilities Ltd. case. |
The decision of a Commission sought to be reviewed is impugned primarily for reasons of jurisdiction including an allegation that the legislation purportedly giving jurisdiction is ultra vires. In addition to the two aspects of jurisdictional criticism the Commission's decision is impugned for anticipation of bias and wrong exercise of discretion, neither which areas are in my view appropriate for intervention by the Commission. It is my view that the Commission should be granted status to intervene for the limited purpose of defending its jurisdiction to have made the impugned decision but not to make representation as to whether the legislation is ultra vires nor with respect to bias or exercise of discretion. I take some comfort from the fact that the Commission in its memorandum of fact and law on page 2 under the heading issues seems only to argue in favour of such limited intervention.
I notice that the application for intervention was made out at a very late date in the proceedings. The applicant's record is already overdue and an intervention will delay matters even further. At this late stage in proceedings, a time table will run into the provisions of Rule 1614 which allocates the setting of time exclusively to a judge. I am therefore ordering that if the Intervenor wishes to proceed with his intervention, it must apply within two weeks to a judge for directions on the procedure, and the submission and service of documents and such other matters has may appear to the judge to be relevant.
ORDER
Canadian Human Rights Commission may intervene for the limited purpose of defending its jurisdiction but not for the purpose of making representation as to the jurisdiction of Parliament to pass the legislation or to defend itself against allegation of anticipated bias or wrongful exercise of discretion.
If Canadian Human Rights Commission wishes to intervene in the limited manner provided it must apply within two weeks to a judge for direction on the procedure to be followed.
"Peter A.K. Giles"
A.S.P.
Toronto, Ontario
June 13, 1997
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-2765-96
STYLE OF CAUSE: ERNST ZÜNDEL
- and -
THE ATTORNEY GENERAL OF CANADA
CONSIDERED AT TORONTO, ONTARIO UNDER THE PROVISION OF RULE 324.
REASONS FOR ORDER
AND ORDER BY: GILES, A.S.P.
DATED: JUNE 13, 1997
SOLICITORS OF RECORD:
Mr. Douglas H. Christie,
Barrister & Solicitor
810 Courtney St.,
Victoria, B.C.
V8W 1C4
Solicitor for the Applicant
Mr. John Vaissi Nagy
Department of Justice
George Thomson
Deputy Attorney General
of Canada
Solicitor For the Respondent
FEDERAL COURT OF CANADA
Court File No. T-2765-96
Between:
ERNST ZÜNDEL
Applicant
- and -
THE ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR ORDER & ORDER