ADMINISTRATIVE LAW |
Judicial Review |
Certiorari |
Zündel v. Canada (Human Rights Commission)
A-215-99
Stone J.A.
10/11/00
6 pp.
Appeal from Trial Judge's dismissal of application for judicial review of order quashing proceedings before Human Rights Tribunal ([1999] 3 F.C. 58) on ground appellant waived right to object to existence of reasonable apprehension of bias--Hearing before Tribunal commenced in 1996--In 1998 appellant moved to have complaints dismissed or to stay any further hearing on basis of Bell Canada v. Canadian Telephone Employees Assn., [1998] 3 F.C. 244 (T.D.), wherein McGillis J. held scheme of Canadian Human Rights Act relating to security of tenure and to financial security weakens status of tribunal appointed under Act to such extent that it lacks requisite level of institutional independence, creates reasonable apprehension of bias--Applying principles laid down in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Utilities), [1992] 1 S.C.R. 623, McGillis J. quashed proceedings therein--Appeal dismissed--Newfoundland Telephone not having effect of rendering doctrine of waiver inoperable because bias causing proceedings before Tribunal to be wholly void, and of no effect--No issue of waiver in that case--As objection to proceedings therein clearly raised at very outset of hearing, Supreme Court of Canada not having occasion therein to address waiver--R. v. Curragh Inc., [1997] 1 S.C.R. 537 not assisting appellant--While determining principles of Newfoundland Telephone applied equally in criminal law context, availability of waiver explicitly accepted, but found not to be applicable in circumstances--Appellant arguing did not waive right to object, and did so promptly after decision in Bell Canada handed down--Provisions of Act as they stood at time hearing commenced created reasonable apprehension of bias, and nothing prevented appellant from challenging validity of proceedings at outset on that basis--Bell Canada changed nothing in this regard, and presented appellant with no new facts--Merely alerted appellant to deficiency in statute--Instead of raising issue of institutional independence at outset, appellant proceeded with hearing before Tribunal without raising slightest objection up to time filed motion in 1998--Canadian Human Rights Act, R.S.C., 1985, c. H-6.