Archive/File: people/z/zundel.ernst/federal_court/A-253-99.01
Last-Modified: 2000/06/05


                                                                Date: 20000518
                                                                              
                                                              Docket: A-253-99


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

                                   BETWEEN:

          SABRINA 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 VVMENTHAL 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 ] Ms. Devins is a member of the Canadian Human Rights Tribunal (the
"Tribunal'") that is hearing a complaint brought against Ernst Zuendel. At
issue in this appeal is whether Ms. Devins is subject to a reasonable
apprehension of bias, stemming from a now twelve-year old press release that
was issued by the Ontario Human Rights Commission (the "Commission" or
"Ontario Human Rights Commission") when Ms. Devins was a member of that
Commission, in which the Commission, among other things, applauded a court
ruling that found Mr. Zuendel to be guilty of publishing false statements that
denied the Holocaust.

                                                                       Page: 2

BACKGROUND FACTS

[2]  On May 11, 1988, a jury found Mr, Zuendel to be guilty of wilfully
publishing a pamphlet called "Did Six Million Really Die?" that he knew was
false and that causes or is likely to cause injury or mischief to a public
interest, contrary to s. 177 of the Criminal Code. 

[3]  Two days after the jury had reached its verdict, the Ontario Human Rights
Commission issuedthe following press release:

     TIME/DATE:     14:32 Eastern Time May 13, 1988
     SOURCE:         Ontario Human Rights Commission
     HEADLINE:       *** HUMAN RIGHTS COMMISSION COMMENDS RECENT ZUENDEL
     RULING ***
     PLACELINE:     TORONTO
     
     The Ontario Human Rights Commission commends the recent court ruling that
     found Ernst Zundel guilty of publishing false statements denying the
     Holocaust.
     
     "This decision lays to rest, once end for all, the position that is
     resurrected from time to time that the Holocaust did not happen and is,
     in fact, a hoax," said Chief Commissioner, Raj Anand "We applaud the
     jury's decision since it calls for sanctions against a man responsible
     for contradicting the truth of the suffering experienced by the Jewish
     people, which was visited upon them solely because of their religion and
     ethnicity."
     
     Mr. Anand also stated that the decision is of broader significance in
     that it affirms not only the rights of Jews, but also of and (sic) other
     religious and ethnocultural groups to be free from the dissemination of
     false information that maligns them.

[4]  Mr. Zuendel's criminal conviction was eventually overturned by the
Supreme Court of Canada, which held that s. 177 of the Criminal Code2   was contrary to the right of free expression

                                                                       Page: 3

guaranteed by s. 2(b) of the Charter, and that the infringement could not be
saved by s. 1 of the Charter. <[1992] 2 S,C.R 731 at 778, per McLachlin J. (as
she then was).>

[5]  Approximately four years after the Supreme Court overturned Mr. Zuendel's
conviction, two complainants laid complaints with the Canadian Human Rights
Commission. The complainants said that they believed that an Internet website
operated by Mr. Zuendel would be "likely to expose a person or persons to
hatred or contempt by reason of the fact that that person or those persons are
identifiable on the basis of a prohibited ground of discrimination," contrary
to subsection 13(1) of the Canadian Human Rights Act. 
A panel of the Canadian Human Rights Tribunal was appointed to inquire into
the complaints. Reva E. Devins was one of three persons appointed to determine
the complaint.

[6]  At the inquiry, which commenced on May 26, 1997, the Canadian Human
Rights Commission relied heavily on the "Did Six Million Really Die?" pamphlet
that had been published on Mr. Zuendel's website. This pamphlet was the same
one that had led to the earlier criminal charges and to the press release
issued by the Ontario Human Rights Commission.

[7]  After approximately forty days of hearings, Mr, Zuendel requested that
the Tribunal fax him thebiographies of the three Tribunal members.
Approximately one week after the

                                                                       Page: 4

biographies had been faxed to him., counsel for Mr. Zuendel located the press
release while searching Quicklaw Systems' databases. That same day, counsel
for Mr. Zuendel brought a motion before the Tribunal, seeking to dismiss the
s. 13(1) complaints on the basis that Ms Devins was subject to a reasonable
apprehension of bias.


THE TRIBUNAL'S DECISION

[8]  The Tribunal rejected Mr. Zuendel's motion. It concluded that the press
release had been made by the then Chief Commissioner of the Ontario Human
Rights Commission, not by the Commission or by Ms. Devins personally.
Moreover, the Tribunal added, the statements was arguably within the Chief
Commissioner's statutory mandate. These factors, the Tribunal held, made it
difficult to understand how the press release could be said to create a
reasonable apprehension of bias on the part of the Chief Commissioner, or that
any bias could then be imputed to Ms. Devins. In any event, the Tribunal held
that even if Mr. Zuendel's submission had any merit, it held that it was
"totally inappropriate at this late state for this matter to be advanced,"
  The Tribunal reasoned that because the statement had
been made long before the hearing had commenced, Mr. Zuendel could have raised
the bias allegation at The outset of the proceedings. In so doing, the
Tribunal implied that Mr. Zuendel had waived his right to raise an allegation
of reasonable apprehension of bias. Mr. Zuendel sought judicial review of the
Tribunal's decision to the Federal Court - Trial Division.

                                                                       Page: 5

THE FEDERAL COURT - TRIAL DIVISION'S DECISION

[9]  In his decision, the Motions Judge held that the press release was a
"gratuitous political statement"  that made "a specific damning statement"  against Mr.
Zuendel, which was "thoroughly inappropriate for the Chair of the Ontario
Commission"  to do, He held that "an institution with adjudicative
responsibilities has no legitimate purpose in engaging in such public
condemnation."

[10]  The Motions Judge reasoned that because the press release stated that
"the Ontario human Rights Commission commends the present court ruling," and
that "we applaud the jury's decision,"" the Chair purported to speak on bchalf
of all members of the Commission, including Ms. Devins. The Motions Judge
added that it would be a "reasonable conclusion to reach that at the time the
statement was made, the members of the Ontario Commission held a strong actual
bias" against Mr. Zuendel. Nevertheless, he concluded that by the time the
Canadian Human Rights Tribunal was convened to inquire into the s, 13(1)
complaint, there was

                                                                       Page: 6

"insufficient evidence to find present actual bias"  against
Ms. Devins.

[11]  The Motions Judge concluded that even though the statement was released
some ten years before Ms. Devins was called to inquire into the s. 13(1)
complaint brought against Mr. Zuendel, a reasonably informed bystander would
apprehend that the "extreme impropriety"  of the press release would
make her subject to a reasonable apprehension of bias.

[12]The Motions Judge rejected the Tribunal's decision that Mr. Zuendel had
waived his right to bring the bias complaint by not bringing it at the outset
of the Tribunal's proceedings, The Motions Judge accepted Mr. ZuendeI's
evidence that he was not aware of the press release until shortly before the
bias allegation was brought.

[13]  Even though he concluded that Ms. Devins was subject to a reasonable
apprehension of bias, the Motions Judge declined to prohibit the remaining
member of the Tribunal from continuing to hear and to ultimately determine the
complaint, He held that because the Canadian Human .Rights Act permits one
Tribunal member to completc an already-commenced hearing where other appointed
members are unable to continue, 
the one remaining member of the panel could continue to hear and decide the
complaint,

                                                                       Page: 7

[14]  Ms. Citron and the other appellants now appeal the Motion Judge's
decision that Ms. Devins was subject to a reasonable apprehension of bias.
They have not appealed the Motion Judge's decision that Mr. Zuendel did not
waive his right to raise the bias allegation by not bringing it at the outset
of the Tribunal's proceedings. Mr. Zuendel has cross-appealed one aspect of
the Motion Judge's decision, arguing that the Motions Judge should have
quashed the Tribunal's proceedings in their entirety.

ISSUES

1.  Was the finding of the Motions Judge that there was a reasonable
apprehension of bias on the part of Ms. Devins unreasonable, based on
erroneous considerations, reached on wrong principle, or reached as a result
of insufficient weight having been given to relevant matters?

2.  Was the Motions Judge correct in holding that, if there was a reasonable
apprehension of bias, the Tribunal could continue with the hearing?

ANALYSIS

1. THE REASONABLE APPREHENSION OF BIAS TEST

[15]  In R v. S. (RD), <[1997] 3 S.C.R. 484.> Cory J. stated the following
manner in which the reasonable apprehension of bias test should be applied:

     The apprehension of bias must be a reasonable one, held by reasonable and
     right-minded persons, applying themselves to the question and obtaining
     thereon the required information. [...] (The) test is "what would an
     informed person, viewing the matter realistically and practically - and
     having
     
                                                                       Page: 8

     thought the matter though - conclude [...],Ibid., p.530.>

[16]  He held that the test contained a two-fold objective element: "the
person considering the alleged bias must be reasonable, and the apprehension
of bias itself must also be reasonable in the circumstances of the
case."

Does the press release address a same issue as the complaint before the
Canadian Human Rights Tribunal?

[17]  On appeal, Mx. Zuendel submits that a reasonable bystander would
conclude that the press release, which attributes certain statements directly
to the Ontario Human Rights Commission, and not merely to the Chair of that
Commission, would cause Ms, Devins (who was a member of the Ontario Human
Rights Commission when the press release was issued) to be subject to a
reasonable apprehension of bias. Mr. Zuendel submits that the criminal charges
upon which the press release was based were directly in relation to his
publication "Did Six Million Really Die?", the very same pamphlet that Mr.
Zuendel had reproduced on his website and that led to the s. I3 (1) human
rights complaint that Ms. Devins and the other two members of the Tribunal
were asked to determine.

[18]  In my view, the press release draws a distinction between statements
made by the Ontario Human Rights Commission, and statements made by Mr, Anand,
the Chair of the Ontario

                                                                       Page: 9

Human Rights Commission. The only statements contained in the press release
that are directly attributed to the Ontario Human Rights Commission are the
following;

     (i)  "The Ontario Human Rights Commission commends the recent court
     ruling that found Ernst Zundel guilty of publishing false statements
     denying the Holocaust";
     
     (ii)  "We applaud the jury's decision since it calls for sanctions
     against a man responsible for contradicting the truth of the suffering
     experienced by the Jewish people, which was visited upon them solely
     because of their religion and ethnicity."

[19]  The criminal charge that the Ontario Human Rights Commission addressed
in the press release was s. 177 of the Criminal Code, later renumbered to s.
181. The section states;

     181.  Every one who wilfully publishes a statement, tale or news that he
     knows is false and that causes or is likely to cause injury or mischief
     to a public interest is guilty of an indictable offence and liable to
     imprisonment for a term not exceeding two years.

[20]  By contrast, s. 13(1) of the Canadian Human Rights Act states:

     13 (1) It is a discriminatory practice for a person or a group of persons
     acting in concert to communicate telephonically or to cause to be so
     communicated, repeatedly, in whole or in part by means of the facilities
     of a telecommunication undertaking within'the legislative authority of
     parliament, any matter that is likely to expose a person or persons to
     hatred or Contempt by reason of the fact that that person or those
     persons are identifiable en the basis of a prohibited ground of
     discrimination.

[21]  In Canada (Human Rights Commission) v. Taylor,<[1990] 3 S.C.R. 892.>
Dickson C.J. held that "s, 13(1) [of the Canadian Human Rights Act] provides
no defences to the discriminatory practice it describes, and most especially
does not contain an exemption for truthful statements."  He
concluded that "[...] the Charter does not mandate an exception for truthful
statements in the context of s. 13(1)

                                                                      Page: 10

of the Canadian Human Rights Act."

[22]  The press release was made in response to a criminal change that did
afford a defence of truthfulness ('`[.,.] that he knows is false.")
.  The statements attributed to the
Ontario Human Rights Commission simply criticize Mr. Zuendel for denying the
truthfulness of the Holocaust. By contrast, in a s. 13(1) complaint, the truth
or non-truthfulness of statements is immaterial to whether the complaint is
substantiated. Consequently, the issue faced by the jury in 1988 is different
from the issue faced by the Canadian Human Rights Tribunal.

[23]  Shortly stated, the essence of the offence in section 177 of the
Criminal Code was that the statement was false and that it could or would
likely cause injury or mischief to a public interest. Thus, the truth of the
statement would provide a complete defence. On the other hand, the essence of
the complaint before the Canadian Human Rights Tribunal is that certain people
were exposed to hatred or contempt. The truth of the statement would provide
no defence.

[24]  The only statement contained in the press release that might be material
to the s. 13(1) complaint is the following:

     Mr. Anand also stated that the decision is of broader significance in
     that it affirms no! only the

                                                                      Page: 11

     rights of Jews, but also of and [sic] other religious and ethnocultural
     groups to be free from the dissemination of false information that
     maligns them.

[25]  It could be argued that the statement reproduced above states that the
information disseminated by Mr. Zuendel exposes Jews to hatred, the essence of
a  s. 13(1) complaint. However, in my view, an informed person, viewing the
matter realistically and practically - and having thought the matter through -
would conclude that the press release draws a distinction between statements
made by the Ontario Human Rights Commission (i. e. "the Ontario Human Rights
Commission commends [...]" or "we applaud [...]") and statements made by Raj
Anand, the Chief Cornmissioner of the Ontario Human Rights Commission. The
statement reproduced above is attributed to Mr. Anand, and not to the
Commission as a whole. Accordingly, I do not think that a reasonable and
informed observer would conclude that the above statement should be attributed
to Ms. Devins.

[26]  Counsel for Mr. Zuendel relied heavily on the Ontario Divisional Court's
judgment in Dulmage v. Ontario (Police Complaints Commissioner)<(1994), 21
O.R. (3rd) 356 (Div. Ct.).>  to demonstrate that statements made by one member
of an organization can be used to demonstrate that a different member of that
organization is subject to a reasonable apprehension of bias.

[27]  In Dulmage, the president of the Mississauga chapter of the Congress of
Black Women of Canada had been appointed to a Board of Inquiry pursuant to
Ontario's Police Services Act.< R.S.O. 1990, c. P.15.>

                                                                      Page: 12

The Board was appointed to investigate a complaint that a public strip search
had taken place, contrary to the manner provided in the Metropolitan Toronto
Police Force's regulations, Approximately one year before the president of the
Mississauga chapter of the Congress of Black Women of Canada was appointed to
the Board, the vice-president of the Toronto chapter of that organization was
reported to have publicly stated that the strip search incident at issue was
"not an 'isolated case' and reflects the 'sexual humiliation and abuse of
black women.'"   In a different statement, the
vice-president recommended "an RCMP investigation of [the] incident,"
and urged that the then-Chief of the Metropolitan Toronto Police Force resign,
saying that "Chief McCormack has clearly demonstrated an inability to give
effective leadership to the Police Force. 

[28]  In its decision, the Divisional Court concluded that the president who
had been appointed to the Board of Inquiry was subject to a reasonable
apprehension of bias. O'Brien J. held:

     [...] Inflammatory statements dealing with this very incident involved in
     this inquiry were made by an officer of the Congress of Black Women of
     Canada. Those statements were made in Toronto, closely adjacent to the
     City of Mississauga. They deal with an incident which received
     significant public attention. The statements referred to the incident as
     an "outrage" and called for the suspension of the officers involved.
     Those officers were the very ones involved in this hearing, Ms. Douglas
     was the president of the Mississauga chapter of the same
     organization.

[29]  Similarly, in his dissenting reasons (although not on this point),
Moldaver J. held that

                                                                      Page: 13

"the remarks themselves related, at least in part, to the critical issue which
the board was required to decide."

[30]  In my view, Dulmage is distinguishable because the statements at issue
in Dulmage dealt with the very question at issue before the Board of Inquiry,
whereas the statements made by the OntarioHuman Rights Commission address an
issue that is immaterial to the s. 13(1) Tribunal inquirythat Ms. Devins has
been asked to determine.

[31]  I think the House of Lords' decision in In Re Pinochet<[1998] H.L.J. No.
52 (Q.L.).>  can be distinguished on a similar basis. In that appeal, the
House of Lords vacated the earlier order it had made in Ex Porte
Pinachet<[1998] H.L.J. No. 41 (Q.L.).> because Lord Hoffman, one of the
members who heard the appeal, had links to an intervener (Amnesty
international) that had argued on the appeal at the House of Lords.

[32]  When Lord Roffman heard the appeal at issue in In Re Pinochet, he had
been a Director and Chairperson of Amnesty International Charity Limited. That
corporation was charged with undertaking charity work for Amnesty
International, the entity that had intervened in Ex Parte Pinochet.

[33]  The type of bias at issue in In Re Pinochet was characterized by Lord
Browne-Wilkinson

                                                                      Page: 14

as "where the judge is disqualified because he is a judge in his own
cause."  Lord Browne-Wilkinson then held
that "if the absolute impartiality of the judiciary is to be maintained, there
must be a rule which automatically disqualifies a judge who is involved,
whether personally or as a Director of a company, in promoting, the same
causes in the same organisation as is a party to the Suit."  Lord Browne-Wilkinson highlighted that "the facts of this
present case are exceptional,"  holding that "the critical
elements are (1) that [Amnesty International] was a party to this appeal;
[...] (3) the judge was a Director of a charity closely allied to [Amnesty
International] and sharing, in this respect, [Amnesty International's]
objects."  He concluded that "only in cases where a judge is taking an
active role as trustee or Director of a charity which is closely allied to and
acting with a to the litigation should a judge normally be concerned either to
recuse himself or disclose the position to the parties."

[34]  Accordingly, In Re Pinochet is not analogous to this appeal. It might be
so if the Ontario Human Rights Commission was a party to the proceedings
before the Tribunal, Since it was not, I do not think that In Re Pinochet
demonstrates that Ms. Devins is subject to a reasonable apprehension of bias.

                                                                      Page: 15

OTHER ERRORS MADE BY THE MOTIONS JUDGE

[35]  I now turn to other alleged errors made by the Motions Judge. In my
view, he committed the following errors, each of which I address at greater
length below:

     1.He failed to address the presumption of impartiality;
     
     2.He failed to consider whether the press release demonstrated an
     objectively justifiable disposition;
     
     3.He failed to properly connect Ms. Devins to the press release;
     
     4.He failed to give appropriate weight to the passage of time;
     
     5.He erred in concluding that the Ontario Human Rights Commission was an
     adjudicative body and had no legitimate purpose in making the press
     release;
     
     6.He erred in concluding that a doctrine of "corporate taint" exists.

Presumption of impartiality

[36]  In my view, the Motions Judge erred by failing to take into account the
principle that a member of a Tribunal will act fairly and impartially, in. the
absence of evidence to the contrary. In R. v. S. (R D ), Cory J. held that
"the reasonable person must be an informed person, with knowledge of all the
relevant circumstances, including `the traditions of integrity and
impartiality that form a part of the background and apprised also of the fact
that impartiality is one of the duties the judges swear to uphoId'." <37 R v.
S. (R.D.), supra at 531 (emphasis in original)>  He added that "the threshold
for a finding of real or

                                                                      Page: 16

perceived bias is high,"  and that "a real likelihood of
probability of bias must be demonstrated, and that a mere suspicion is not
enough "  Further, Cory J. held that "the onus of
demonstrating bias lies with the person who is alleging its existence."

[37]  In Beno v. Canada (Commissioner and Chairperson, Commission of Inquiry
into the Deployment of Canadian ,Forces to Somalia),<[1997[ 2 F.C. 527
(C.A.).>  this Court held that there is a presumption that a decision-maker
will act impartially.  Similarly, in E.A. Manning Ltd, v.
Ontario Securities Commission, <(1995), 23 O.R (3d) 257 (C.A.), application
for leave to appeal to S.C.C. dismissed August 17, 1995. >  the Ontario Court
of Appeal held, in the context of a bias allegation levelled against a
securities commission, that "it must be presumed, in the absence of any
evidence to the contrary, that the Commissioners will act fairly and
impartially in discharging their adjudicative responsibilities and will
consider the particular facts and circumstances of each case."
And in Finch v. Assn. of Professional Engineers and Geoscientists or British
Columbia,<[1996] 5 W.W.R. 690 (B.C.C.A.)>  the British Columbia Court of
Appeal held that it must be assumed, "unless and until the contrary is shown,
that every member of this committee will carry out his or her duties in an
impartial manner and

                                                                      Page: 17

consider only the evidence in relation to the charges before the panel.
"

Failure to consider whether the press release demonstrated an objectively
justifiable disposition

[38]  In R. v. S. (R. D.), Cory J. offered a useful definition of the word
"bias." He held that "bias denotes a state of mind that is in some way
predisposed to a particular result, or that is closed with regard to
particular issues."  He added that "not
every favourable or unfavourable disposition attracts the label of
prejudice,"  He held that where particular unfavourable dispositions
are "objectively justifiable,"  such dispositions would not constitute
impermissible bias. He offered "those who condemn Hitler"  as examples
of objectively justifiable dispositions and, therefore, such comments do not
give rise to a reasonable apprehension of bias on the part of the speaker,

[39]  In the Supreme Court's judgment that overturned Mr. Zuendel's criminal
conviction for publishing the "Did Six Million People Really Die'?" pamphlet,
McLachlin J. (as she then was) referred to Mr. Zuendel's beliefs as
"admittedly offensive,"  while Cory and
lacobucci JJ.

                                                                      Page: 18

described the pamphlet as part of a "genre of anti-Semitic literature"
 that "makes numerous false allegations of fact." In light of these statements, how could it not be objectively
justifiable for the Ontario Human Rights Commission and its Chair to have made
similar statements regarding the same pamphlet in their press release?

Failure to connect Ms. Devins to the press release

[40]  The Motions Judge held that it would be a reasonable conclusion to think
that at the time the press release was issued, both the Chair of the Ontario
Human Rights Commission and its members held a strong actual bias (i.e. and
not just a reasonable apprehension of bias) as against Mr. Zuendel.

[41]  He later held that "the passage of time does not eradicate the fact that
Ms. Devins is reasonably attributed with strong actual bias."  However, from the Motion Judge's reasons, it appears that he took
Ms. Devins' present denial of bias into account to conclude that at the time
the Tribunal was appointed to inquire into the s. 13(1) complaint, there was
"insufficient evidence to find present actual bias by Ms, Devins against the
applicant."

[42]  In my view, the Motions Judge's reasons confuse the passage of time with
Ms. Devins'

                                                                      Page: 19

actual connection to the press release. There was no evidence that Ms. Devins
was aware of the press release, let alone agreed with or was party to its
issuance so as to demonstrate actual bias at the time the press release was
issued. Similarly, there was no evidence of conduct of Ms. Devins from which
one could infer a reasonable apprehension of bias later.

Failure to give appropriate weight to the passage of time

[43]  In the instant matter now on appeal, the Motions Judge attributed little
or no weight to the time that had passed between the date the press release
was issued and the date on which Ms Devins was appointed to determine the
complaint launched against Mr. Zuendel. He held that "the passage of time does
not eradicate the fact that Ms. Devins is reasonably attributed with strong
actual bias."

[44]  In so doing, I think the Motions Judge failed to give appropriate weight
to the amount of time that had passed between the date on which the press
release was issued and the date Ms. Devins was asked to hear the s. 13(1)
complaint. In Dulmage, referred to earlier in these reasons, Moldaver J.
concluded that the impugned board member was subject to a reasonable
apprehension of bias in part because the press conference during which the
statements were made had only taken place one year before the board hearing, 3
period of time that he did not consider to be "sufficient to expunge the
taint left in the wake of these remarks."

                                                                      Page: 20

[45]  In the instant appeal, the Tribunal at issue was appointed some nine
years after the press release was issued: a much greater time lag than was at
issue in Dulmage, and one that, along with the other factors considered in
this judgment, I consider to be sufficient to expunge any taint of bias that
might have existed by reason of the press release.

Error in concluding that a doctrine of "corporate taint" exists

[46]  By concluding that all members of the Ontario Human Rights Commission
would be biased by reason of the press release, the Motions Judge appeared to
conclude that there is a doctrine of corporate "taint," a taint that is said
to paint all members of a decision-making body with bias in certain
circumstances. In Bennett v, British Columbia (Securities Commission),s' the
British Columbia Court of Appeal rejected the doctrine of corporate taint. It
held:

     We wish to add one futher observation and that is as to the target of a
     bias allegation. Bias is an attitude of mind unique to an individual. An
     allegation of bias must be directed against a particular individual
     alleged, because of the circumstances, to be unable to bring an impartial
     mind to bear. No individual is identified here. Rather, the effect of the
     submissions is that all of the members of the commission appointed
     pursuant to s. 4 of the Securities Act, regardless of who they maybe, are
     so tainted by staff conduct that none will be able to be an impartial
     judge. Counsel were unable to refer us to a single reported case where an
     entire tribunal of unidentified members had been disqualified from
     carrying out statutory responsibilities by reason of real or apprehended
     bias. We think that not to be surprising, The very proposition is so
     unlikely that it does not warrant serious consideration.

[47]  Similarly, in Laws v. Australian Broadcasting Tribunal,< (1990), 93
A.L.R 435 (Aust. H.C).>  Australia's High Court

                                                                      Page: 21

concluded that the doctrine of corporate taint did not exist, absent
circumstances that permit an inference to be drawn that all members of art
administrative tribunal authorized or approved statements or conduct that gave
rise to a reasonable apprehension of bias on the part of one of its members.
In Laws, three members of the Australian Broadcasting Tribunal conducted a
preliminary investigation of Mr. Laws, and concluded that he had breached
broadcasting standards. The Director of the Tribunal's Programs Division later
gave an interview in which she repeated the conclusions made by the three
Tribunal members. Mr. Laws sought an order prohibiting the entire Tribunal
from later holding a formal hearing to determine whether it should exercise
regulatory powers against Mr. Laws. His application was brought on the basis
that the prejudgment expressed by the three members who had conducted the
preliminary investigation and the statements made by the Director of the
Programs Division served to taint the entire Tribunal.

[48]  Australia's High Court rejected Mr. Laws' application. It held:

     However, though it might be correct to regard the interview as a
     corporate act, it was not necessarily an act done on behalf of each of
     the individual members of the corporation. The circumstances are not such
     as to Justify the drawing of an inference that each of the individual
     members of the tribunal authorised the littervitw or approved of its
     content. At best, from the appellant's viewpoint. it might be inferred
     that the three members of the tribunal who made the decision of 24
     November so authorised or approved the interview.

[49]  These decisions, I think, demonstrate that there is no doctrine of
corporate taint. I prefer the reasoning in these decisions to the implication
drawn by the majority in the Dulmage decision

Page: 22

that such a taint could be said to exist.<62>

     <62>  In his dissenting reasons, Moldaver J. appeared to recognize that
     no such doctrine exists. He held that "a member need not automatically
     withdraw solely because of statements made by a representative of an
     affiliated community organization about issues before tile board" (at
     363). Later in his judgment, he repeated the point, holding:
     
     Lest there be any doubt about it, I wish to emphasize that mere
     association, either past or present, on the part of a board member with
     an organization, which, by its very nature, might be said to favour one
     side or the other, will not of itself satisfy the test for reasonable
     apprehension of bias (at 366).

[50]  As I have previously explained in these reasons, I do not think that the
proviso contained in the paragraph reproduced above from the Laws decision
applies in the circumstances of this appeal one cannot draw an inference that
each of the individual members of the Ontario Human Rights Commission
authorized the entire press release that was issued. To the extent that the
members of the Commission could be said to have authorized certain statements
contained in the press release, any such statements are immaterial to the
complaint that Ms. Devins has been asked to determine.

THE SUPREME COURT OF CANADA'S JUDGMENT IN NEWFOUNDLAND TELEPHONECO, V.
NEWFOUNDLAND (BOARD OF COMMISSIONERS OF PUBLIC UTILITIES

[51]   Counsel for the appellants relied on the Supreme Court of Canada's
judgment in Newfoundland Telephone Co, v. Newfoundland (Board of Commissioners
of Public Utilities)<[1992] 1 S.C.R. 623.>  for the proposition that the
Ontario Human Rights Commission was engaged in a policy-making function at the
time the press release was issued and therefore the statements contained in
the

                                                                      Page: 23

press release were subject to a much lower standard of impartiality,

(52]  In Newfoundland Telephone, Andy Wells was appointed to a Board that was
responsible for the regulation of the Newfoundland Telephone Company Limited,
After he was appointed to the Board, and after the Board had scheduled a
public hearing to examine Newfoundland Telephone's costs, Mr. Wells made
several. strong statements against Newfoundland Telephone's executive pay
policies. Mr. Wells was one of five who sat on that hearing. Counsel for
Newfoundland Telephone objected to Mr. Wells' participation at the hearing,
arguing that the strong statements Mr. Wells had made demonstrated that he was
subject to a reasonable apprehension of bias.

[53]  In Newfoundland Telephone, Cory J. recognized that administrative
decision-makers were subject to varying standards of impartiality, He held
that "those that are primarily adjudicative in their functions will be
expected to comply with the standard applicable to courts," 54 while boards
with popularly-elected members are subject to a "much more lenient"
standard.  He added that administrative boards that deal with matters
of policy should not be subject to a strict application of the reasonable
apprehension of bias test, since to do so "might undermine the very role which
has been entrusted to them by the legislature."  Accordingly, he held
that "a member of a board which performs a policy formation function should
not be susceptible to a charge of bias simply

                                                                      Page: 24

because of the expression of strong opinions prior to the hearing."


[54]  Accordingly, Cory J. held that, had the following statement been made
before the Board's hearing date was set, it would not amount to impermissible
bias! "[s]o I want the company hauled in, here - all them fat cats with their
big pensions - to justify  (these expenses) under the public glare [...] I
think the rate payers have a right to be assured that we are not permitting
this company to be too extravagant." He supported that conclusion in the
following manner:

     That comment is no more than a colourful expression of an opinion that
     the salaries and pension benefts seemed to be unreasonably high. It does
     not indicate a closed mind. Even Wells' st$tement that he did not think
     that the expenses could be justified, did not indicate a closed mind.
     However, should a commissioner state that, no matter what evidence might
     be disclosed as a result of the investigation, his or her position would
     not change, this would indicate a closed mind.

[55]  In Newfoundland Telephone, Cory J. held that once a board member charged
with a policy-making function is then asked to sit on a hearing, "a greater
degree of discretion is required of a member."69 Once a hearing date was set,
Cory J. held that the board members at issue in Newfoundland Telephone had to
"conduct themselves 'so that there could be no reasonable apprehension of
bias. .

                                                                      Page: 26

[59]  Subsections 28(a), (b) and (d) demonstrate that the Ontario Human Rights
Commission is vested with policy-making functions and with an obligation to
educate and to inform the public. Accordingly, I do not agree with the Motion
Judge's conclusion that the press release issued by the Ontario Human Rights
Commission was "thoroughly inappropriate." Rather, the statement was
consistent with its statutory obligation, inter alia, "to forward the policy
that the dignity and worth of every person be recognized."

[60]  However, I do not think that the Newfoundland Telephone case provides
much assistance to the appellants. In my view, one should bear in mind that in
Newfoundland Telephone, the Board was specifically charged with dual
functions: investigatory ones and adjudicative ones, Among its investigatory
powers, the Board was permitted to `make all necessary examinations and
enquiries to keep itself informed as to the compliance by public utilities
with the provisions of law,"  to "inquire into any violation of the
laws or regulations in force,"  to "summarily investigate
[...] whenever the Board believes that any rate or charge is unreasonable or
unjustly discriminatory [...]."  In the same breath, the Board
was permitted to hold hearings "if, after any summary investigation, the Board
becomes satisfied that sufficient grounds exist to warrant a formal hearing
[...]."  Accordingly, the statute specifically envisaged that
Board members who had acted in an investigatory capacity could later act as
adjudicators. Indeed, in Newfoundland

                                                                      Page: 27

Telephone, Cory J. held that even when the Board at issue in that appeal was
required to abide by the reasonable apprehension of bias standard, the
standard "need not be as strict for this Board dealing with policy matters as
it would be for a board acting solely in an adjudicative capacity."

[61 ] By contrast, the Canadian Human Rights Tribunal is vested with no policy
functions or with. dual functions: it is simply charged with the adjudication
of human rights complaints. Accordingly, unlike Newfoundland Telephone, there
is no statutory authority for the proposition that parliament specifically
envisaged that members of the Canadian Human Rights Tribunal would have
engaged in policy-making functions with regard to the very same issues that
they would later be asked to adjudicate.

CONCLUSION ON BIAS

[62]  In my view, the Motions Judge erred when he concluded that Ms. Devins
was subject to a reasonable apprehension of bias. I would set aside his
decision, and remit the matter to the Canadian Human Rights Tribunal.

2.Was the Motions Judge correct in holding that, if there was a reasonable
apprehension of bias,the Tribunal could continue with the hearing?

[63]  In the event I am wrong on the first issue it is necessary to deal with
the second issue: namely, whether the Motions Judge erred by concluding that
even though Ms. Devins was subject to a reasonable apprehension of bias, the
remaining member of the Tribunal could continue to determine the as-yet
undetermined complaint at issue before the Canadian Human Rights Tribunal.

                                                                      Page: 28

[64]  In my view, the Motions Judge erred by concluding that where a
reasonable apprehension of biasis proven, the remaining members of the
Tribunal could continue to hear and determine the complaint. At the time the
bias allegation was raised, the panel of which Ms. Devins was a member had sat
for some fourty days, and had made approximately 53 rulings. Counsel for Mr.
Zuendel argued that each one of those rulings was contrary to the result for
which he had argued.

[65]  Viewed in this light, I cannot see how the Tribunal's proceedings could
somehow be remedied merely by virtue of there being one remaining member of
the Tribunal who could determine the complaint. How could one ever know
whether the Tribunal's ultimate decision was somehow affected by one or more
of the Tribunal's rulings? How could one ever know whether the biased member
had expressed her preliminary views on the merits of the complaint before she
was ordered to be reeused from the proceedings? And how could one ever know
whether those consultations might have somehow affected the remaining member's
decisions on the interlocutory rulings? These concerns, I think, demonstrate
that where one member of an administrative tribunal is subject to a reasonable
apprehension of bias and a number of serious interlocutory orders have been
made over the course of a lengthy hearing, the tribunal's proceedings should
be quashed in their entirety, even though a statutory provision on its face
permits the tribunal to proceed with fewer members where a member is, for
sorne reason, unable to proceed.

                                                                      Page: 29

[66]  My conclusions are supported by Cory J,'s reasons in R. v. S. (R, D.),
where he held:

     If a reasonable apprehension of bias arises, it colours the entire trial
     proceedings and it cannot be cured by the correctness of the subsequent
     decision. See Newfoundland Telephone, supra, at p. 645; see also Curragh,
     supra, at para. 6. Thus, the mere fact that the judge appears to make
     proper findings of credibility on certain issues or comes to the correct
     result cannot alleviate the effects of a reasonable apprehension of bias
     arising from other words or conduct of the judge. In the context of an
     application to disqualify a judge from sitting in a particular lawsuit.
     it has becn held that where there is a reasonable apprehension of bias,
     "it is impossible to render a final decision resting on findings as to
     credibility made under such circumstances.

CONCLUSION

[67]  I would allow the appeal, with costs and set aside the order of the
Motions Judge dated April 13, 1999 and remit the matter back to the Tribunal
for completion of the hearing.

                                                            "J.  Edgar Sexton"
                                                                          J.A.

"I agree
Julius A. Isaac J.A."

"I agree
J.T. Robertson J.A."

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