Toronto Mayor's Committee on Community

and Race Relations V. Ernst Zundel - Authority

to Attend in Federal Court

 The Corporate Services Committee recommends the adoption of the following report (May 21, 1998) from the City Solicitor:

 Purpose:

 To seek authority for the City Solicitor to attend in Federal Court on behalf of the Toronto Mayor's Committee on Community and Race Relations (the "TMCCRR") to oppose an Application for Judicial Review brought by Mr. Ernst Zundel with respect to a recent decision (April 22, 1998) by the Human Rights Tribunal dismissing Mr. Zundel's motion to have the hearing into the TMCCRR's complaint against Mr. Zundel under the Canadian Human Rights Act stayed and the complaints against him dismissed.

 Funding Sources, Financial Implications and Impact Statement:

 Not applicable.

 Recommendations:

 It is recommended that:

 (1)City Council authorize the City Solicitor to attend in Federal Court on behalf of the Toronto Mayor's Committee on Community and Race Relations (the "TMCCRR"), to submit evidence and make arguments as necessary to oppose the Application for Judicial Review brought by Mr. Ernst Zundel with respect to the recent decision (April 22, 1998) of the Human Rights Tribunal hearing the complaint of the TMCCRR against Mr. Zundel under the Canadian Human Rights Act to dismiss a motion by Mr. Zundel to stay the proceeding and to dismiss the complaints; and

 (2)in light of the numerous proceedings launched to date by Mr. Zundel in this matter, City Council provide the City Solicitor with standing authority to represent and defend the TMCCRR and the City of Toronto's interests as necessary in such further court proceedings as may be initiated by Mr. Zundel with respect to the Tribunal hearing, any interim or final decision of the Tribunal hearing the TMCCRR's complaint under the Canadian Human Rights Act, or appeal from any Court decision respecting the Tribunal hearing.

 Council Reference/Background/History:

 On July 18, 1996, the Toronto Mayor's Committee on Community and Race Relations (the "TMCCRR") of the former City of Toronto made a formal complaint to the Canadian Human Rights Commission (the "Commission") alleging that Ernst Zundel has discriminated against certain identifiable individuals or groups on the grounds of race, religion or national or ethnic origin contrary to subsection 13(1) of the Canadian Human Rights Act by placing holocaust denial and hate propaganda material on the Internet which will expose persons of Jewish origin to hatred and contempt.

 As a result of the TMCCRR's complaint, and a similar complaint received from Ms. Sabina Citron against Mr. Zundel, the Commission appointed a Human Rights Tribunal to enquire into the complaints, hear evidence and argument, and make a determination as to whether Mr. Zundel had in fact violated the Act.

 The Tribunal hearing commenced on May 26, 1997 and has convened in October 1997, December 1997, April 1998 and May 1998 for a total of approximately 23 hearing days. A further 12 days of hearing are presently scheduled for the remainder of May and June 1998.

 Prior to the Tribunal hearing commencing, Mr. Zundel made an application (dated December 12, 1996) for judicial review to the Federal Court of Canada (Trial Division) raising various challenges to the proceedings and requesting a stay of proceedings to allow for a Court to first rule on these issues. Preliminary motions to this effect have been denied by both the Court and the Tribunal hearing the complaint.

On March 23, 1998, the Federal Court issued a decision with respect to another human rights tribunal hearing dealing with a pay equity complaint against Bell Canada and ordered that the proceedings before the tribunal in that case should be quashed on the basis that the statutory scheme contained in the Canadian Human Rights Act creates a reasonable apprehension of bias in that there is too close a relationship between a Tribunal under the Act and the Canadian Human Rights Commission, which appoints and pays Tribunal members. On the basis of this decision, Mr. Zundel brought motions before both the Tribunal (heard April 7 and 8, 1998) and the Federal Court (heard April 27 and 28, 1998) to stay the Tribunal hearing for the reasons enunciated in the Bell case.

 At its meeting of April 16, 1998, City Council authorized the City Solicitor to seek party and/or intervenor status to participate in the judicial review and speak to the stay motion. Party status was granted to the TMCCRR by the Federal Court on April 27, 1998.

 Mr. Zundel's motions before the Tribunal and the Court were both dismissed and the hearing resumed last week (May 11-15, 1998).

 In addition to the complainants, the Commission and Mr. Zundel, the other parties participating in the Tribunal hearing and judicial review are: The Canadian Jewish Congress, The League for Human Rights of B'Nai Brith Canada, the Simon Wiesenthal Centre, the Canadian Holocaust Remembrance Association and the Canadian Association for Free Expression (not involved in the judicial review).

 Comments and/or Discussion and/or Justification:

 On May 14 and 15, 1998, the solicitor representing the TMCCRR at the Tribunal hearing was served by Mr. Zundel with both a Notice of Application to judicially review the Tribunal's decision and a Notice of Appeal of the decision of the Federal Court to dismiss Mr. Zundel's most recent stay motions. While I have taken the appropriate action to preserve the TMCCRR's rights with respect to both Notices, the Application for Judicial Review is a new proceeding for which my attendance has not been previously authorized by Council. I am therefore seeking the authority to attend with respect to that proceeding to submit evidence and make argument as necessary to protect the interests of the TMCCRR as a complainant before the Tribunal.

 Given the number of proceedings which Mr. Zundel has launched in the past with respect to this matter and may initiate in the future, I am also requesting standing authority to defend the interests of the TMCCRR and the City in any other related proceeding launched by Mr. Zundel.

 Conclusions:

 Authority should be granted for the City Solicitor to represent the TMCCRR as necessary to protect its interests and the interests of the City with respect to this matter.

 Contact Name:

 Edward Earle, Legal Services Division - 392-7226