MR. CHRISTIE: I take it that you are not going to rule on the application for adjournment and that I am obliged to proceed to submit the motion. I take that to be your ruling?

THE CHAIRPERSON: Yes.

ARGUMENT RE MOTION TO DISMISS OR TO

STAY THE PROCEEDINGS

ARGUMENT ON BEHALF OF THE RESPONDENT

MR. CHRISTIE: I would like to start by submitting to you that, if one looks at the Bell Canada case, it is not subject to the limitations imposed by the Court of Appeal in MacBain. It does not hold that the ruling is merely to make the proceedings voidable; it makes it very clear that the proceedings are void. This is not an application under the Bill of Rights, but for many other reasons it is quite distinguishable.

The paragraphs are numbered in the copy that I have given to you. My learned friends have already taken copies.

In my submission, it is clear from this judgment that Madam Justice McGillis was well aware of the MacBain decision. She was well aware of the effect that it had, which was not to produce any substantial change to the apprehension of bias in the systemic arrangement of the Tribunal, and she was well aware that, if that was not sufficient and if steps were not taken as they are articulated in the judgment to have been not taken, then perhaps something more in the nature of a drastic remedy would have to be applied.

In paragraph 33, I would ask you to look at the last sentence:

"The 1985 amendments did not alter the by-law provision in the 1977 Act which specified that a member of the Tribunal was entitled to be paid the remuneration and expenses prescribed in a by-law made by the Commission."

That, of course, I think still applies today.

The President was required to appoint a tribunal as set out in paragraph 34. In paragraph 35 she said:

"In summary, the fundamental scheme enacted in the 1977 Act establishing the Commission and creating its powers, duties and responsibilities was unchanged by the 1985 amendments, save and except in relation to the abolition of the Commission's power to select the members of a Tribunal and Review Tribunal."

Farther down in the paragraph she says:

"-- the power of the Commission to make by-laws fixing the rates of remuneration for its part-time members, its experts and the members of a Tribunal, as well as their expenses, remained in effect."

In paragraph 38, in the middle of the paragraph, it says:

"In particular, the Tribunal Panel staff began to take directions from the President, even though they remained employees of the Commission."

In paragraph 40 she says: "-- including the sharing of office premises." Then she says that the matter, in the view of Mr. Glynn who was at that time writing, "could compromise 'the independence of the appointment process'."

In paragraph 47 the judgment reads:

"In 1988, the Tribunal Panel moved out of the Commission's premises. From that point on, the Commission's involvement in the day-to-day operations of the Tribunal Panel was limited to budgetary matters and the provision of corporate services in relation to finances, personnel and administration. At that time, the Tribunal Panel staff ceased to perform duties for the Commission, although they remained employees of the Commission."

In paragraph 48 the important parts state:

"The Tribunal Panel had no authority to submit its budget to Parliament; only the Commission could appropriate the necessary funding."

In the last part of that paragraph it says:

"Following the vote by Parliament of monies to be allocated to the Commission, the Tribunal Panel obtained its funding from the Commission, --"

That, I think, is an important consideration.

In paragraph 49 it states:

"Mr. Glynn would approve a member's claim and submit it to the Commission's financial services for payment. Pay cheques for Tribunal members were requisitioned by the Commission and bore on their face the words 'Canadian Human Rights Commission'."

Then under the heading "Tribunal Structure and Procedures":

"The Commission also believes that amendments are required to ensure --"

I take it that this is a quote from advice from Mr. Glynn.

"-- that Tribunal members are available on a permanent basis, have sufficient knowledge of human rights law and practice, and can deal more expeditiously with cases..."

Bill C-108 was to make certain changes. At the bottom of the page it says:

"The Government proposes to make the guidelines non-binding. This way, the Commission can still provide guidance, while allowing the law to develop. The current equal pay guidelines will remain in force."

We are very concerned with the difficulty of assessing what the guideline communications from the Commission to the Tribunal may or may not have been. We are not privy to them. We have no knowledge of them. We suspect that they may be of a wide variety because, of course, they pertain to a particular case. Who is to say that there were not guidelines issued in this case respecting some of the legal questions that have yet to be resolved?

On the next page in paragraph 52 it states:

"Furthermore, the members of a Tribunal were entitled to be paid the travel and other allowances that judges are entitled to --"

These are the proposals, of course, which are not yet in law.

Paragraph 56 states:

"With respect to Bill C-108, Mr. Glynn testified that the Bill '...achieved the objective we were trying to create,' Unfortunately, the Bill died on the Order Paper."

Of course, that is quite clear.

The proposals which the Human Rights Tribunal realized were necessary to establish its judicial independence have never been legislated, and the bill which was touted as being necessary is not the law.

In paragraph 59 the last sentence reads:

"In order to obtain an increase in the per diem rate of remuneration for the members of a Tribunal, the Tribunal Panel would have to negotiate with the Commission and convince it to pass a by-law authorizing the payment of an increased rate of remuneration. In the event that the Commission agreed to enact a new by-law, Treasury Board approval would also be required."

With regard to paragraph 61, it was also thought necessary in October 1994 that all previously appointed tribunals retain jurisdiction to conclude matters of which they are seized. In other words, legislation to that effect would be required. If that was not necessary, then the doctrine of necessity would have provided the solution which, in my submission, obviously was not thought sufficient.

In paragraph 64, it says:

"On December 5, 1996, an Order in Council was made under the Public Service Rearrangement and Transfer of Duties Act, R.S.C. 1985, c. P-34, transferring from the Commission to the Tribunal Panel the control and supervision of the Tribunal Panel Registry."

That, I point out, would appear to have been after the Tribunal Panel was chosen by the Commission for this particular Panel.

Under "Alternatives" on the next page it states:

"The only other possible alternative to achieve the end objective is an amendment to the Canadian Human Rights Act. It does not appear that the government will make the necessary amendments in the foreseeable future."

Those are the words of Madam Justice McGillis with the considerations before her, in looking at the statutory scheme and, I think, undisputed facts which obviously are not subject to change on a case-by-case basis or are not determined in any way different from the case under consideration by this Tribunal.

Under the heading "Costs and Benefits," the last sentence in that paragraph states:

"This allegation is based on the belief that the Tribunal and the Commission are too closely aligned and are in fact one organization. These allegations have caused delays in Tribunal proceedings."

Under "Compliance and Enforcement" she states:

"Without these changes, the operational independence and authority of the Tribunal to fulfill its mandate as established by Parliament could be at risk."

In paragraph 65, the last sentence states:

"Despite this significant change, the legislative scheme in the Act remains in effect. In particular, the Act requires the Commission to fix the remuneration, travel and living expenses of the members of a Tribunal. Furthermore, the Commission has statutory power to issue guidelines which are binding on a Tribunal."

We don't know what have been issued. There is no registry, to our knowledge, of those guidelines. We don't know precisely what has been said. It is certainly not within our knowledge; in fact, we have no way of knowing it as far as I know. Much as one would like to attribute the knowledge that my learned friends have attributed to me, I am not privy to any guidelines that have been issued by the Commission to the Tribunal, although I am now aware that they do exist.

With regard to Bill C-98, turning to the next page, it was indicated that that proposal did not affect the power of the Commission to issue guidelines which were binding on the Tribunal. In paragraph 69 it is made clear that Bill C-98 died on the Order Paper -- another attempted amendment which was never enacted and, I might say, an attempted amendment which was considered necessary.

In paragraph 71 it states:

"On February 2, 1998, Bill S-5 had its first reading in the House of Commons. Following its second reading on February 11, 1998, Bill S-5 was referred to the Justice and Human Rights Committee for study. As of today's date, that Committee is continuing its study of Bill S-5."

With regard to Tribunal appointments, the Court finds that the per diem rate of remunerations are fixed by a by-law of the Commission. That is in paragraph 72. In paragraph 73 the Court finds:

"As a result, they were presumably interested in having their terms extended, or they would not have agreed to sit on the case."

These findings of the Court are based upon a consideration of nothing unique to the Zundel case.

In paragraph 78 the Court deals with the whole subject of judicial independence and quotes the judgment of Mr. Justice Le Dain in the Supreme Court of Canada. I won't read it. On the next page you find another quote from the same case.

It is important to recognize, if I may, that, if you look at paragraph 79, you will see that what the Court is considering is not the Bill of Rights and whatever voidable effect it may have had and was viewed as having in the MacBain case. They are looking at the Charter of Rights and they are looking at section 11(d) and applying the Charter of Rights to the provisions of a statute which, although not penal, has comparable powers and provisions and, by analogy, the Court is applying it to the Human Rights Tribunal.

The judgment quotes from the judgment of Mr. Justice Le Dain at page 688:

"But a tribunal which lacks the objective status or relationship of independence cannot be held to be independent within the meaning of s. 11(d), regardless of how it may appear to have acted in the particular adjudication."

In paragraph 81, the Court is quoting again or, at least, paraphrasing from Justice Le Dain's judgment and says:

"Le Dain J. concluded that there were three essential conditions of judicial independence for the purposes of s. 11(d) of the Charter: security of tenure, financial security, and the institutional independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial function."

In paragraph 82 the Court considers further words of Justice Le Dain in the same case as well as in Valente v. The Queen. At the bottom it is clearly stated:

"In the words of the Court of Appeal, that test is 'what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- concluded...'"

A number of cases were analyzed and the words of Mr. Justice Lamer in paragraph 85 are referred to. The words are stated:

"Independence is the cornerstone, a necessary prerequisite, for judicial impartiality."

In paragraph 87, quoting again Justice Lamer in the same decision:

"'...whether or not any particular judge harboured pre-conceived ideas of biases, if the system is structured in such a way as to create a reasonable apprehension of bias on an institutional level, the requirement of impartiality is not met. As the Court stated in Valente, supra, the appearance of impartiality is important for public confidence in the system'."

In paragraph 91 the Court then considered the two-pronged test and analyzes Chief Justice Lamer's second stage

"-- in which he considered the legislative safeguards in place to minimize the perceived problem of partiality, including the oath of office --"

At one Hearing I asked, I think, Mr. Sinclair if there was any oath of office and I got no answer to that. I don't believe there is.

"-- judicial immunity and the code of ethics."

Do Human Rights Tribunals swear any oath and, if so, to what and by what means and to do what, and where is, if any, the code of ethics?

The impartiality of courts martial was considered in paragraph 92.

In paragraph 94 the Court considered again the words of Chief Justice Lamer:

"In describing the essential conditions of independence, Lamer C.J. observed at page 285 that the first condition, security of tenure, could be '...satisfied in a number of ways', but that 'what is essential is that the decision-maker be removable only for cause.' With respect to the second condition, financial security, he referred to the statement in Valente v. The Queen at page 704, that the right to salary and pension should be established by law and not be subject to arbitrary interference by the Executive."

In the case of the Human Rights Tribunal in which you are involved, there is removal at the end of your term, whenever that may be -- and, of course, we don't know when that is, but it is certainly not only for cause. That term is, of course, subject to renewal, and it was that consideration which the Ministry and the department have to decide that question -- actually, the Prime Minister, I suppose, who appoints yourselves -- which was a factor in Madam Justice McGillis' decision.

In paragraph 95 she quotes Lamer C.J. again to say:

"'...an external force to be in a position to interfere in matters that are directly and immediately relevant to the adjudicative function, for example, assignment of judges, sittings of the court and court lists'."

In paragraph 97 the Court says:

"With respect to the criteria of security of tenure, Lamer C.J. noted, among other things, that '...under the regulations in force at the time of the appellant's trial, the judge advocate was appointed solely on a case by case basis."

Which, in my submission, is the same as your appointment.

"As a result, there was no objective guarantee that his or her career as a military judge would not be affected by decisions tending in favour of an accused rather than the prosecution'. He therefore concluded that, at the very least, '...the essential condition of security of tenure, in this context, requires security from interference by the executive for a fixed period of time.'"

As I understand it, the Members of your Tribunal only get a per diem rate for each day of the hearings, and they are appointed to sit on a case-by-case basis.

Further in this paragraph, with reference to Valente, her ladyship said with regard to courts martial -- and this is a quote from the judgment -- that it was not an adequate protection for the purposes of section 11(d) of the Charter.

In paragraph 99 there is reference again to Justice Lamer's remarks:

"'A reasonable person would perceive that financial security, an essential condition of judicial independence, was not present in this case.'"

She then goes on to consider Canadian Pacific v. Matsqui Indian Band.

In paragraph 105 at the bottom of the page she states:

"In relation to the question of institutional independence, Lamer C.J. confirmed that the principles developed in Valente v. The Queen, supra, in the context of a s. 11(d) Charter challenge, applied to administrative tribunals. He stated as follows, at page 48:

I begin my analysis of the institutional independence issue by observing that the ruling of this Court in Valente, supra, provides guidance in assessing the independence of an administrative tribunal. There, Le Dain J. considered whether provincial court judges were independent. He pointed to three facts which must be satisfied in order for independence to be established: security of tenure, security of remuneration and administrative control.

He also confirmed that judicial independence is part of the rules of natural justice, and as such applies to proceedings before administrative tribunals."

In my submission, this where we find what is a logical, justified and well-supported proposition that 11(d) Charter rights apply to administrative tribunals through the application of the rules of natural justice.

She quotes further in the same paragraph 106:

"'This Court has considered Valente, supra, in at least one case involving an administrative tribunal, IWA v. Consolidated-Bathurst Packaging Ltd...There, Gonthier J. stated...:

Judicial independence is a long standing principle of our constitutional law which is also part of the rules of natural justice even in the absence of constitutional protection.

I agree and conclude that it is a principle of natural justice that a party should receive a hearing before a tribunal which is not only independent, but also appears independent. Where a party has a reasonable apprehension of bias, it should not be required to submit to the tribunal giving rise to this apprehension.'"

Which is exactly what we are forced to do by your ruling.

We are forced by your ruling, in making this motion, to submit our arguments to a tribunal where we are certainly entitled to have a reasonable apprehension of bias unless we are to have the unreasonable assumption that your appointments in any way differ from those of any other tribunal members. Of course, we don't have that unreasonable assumption. We have every reason to believe that your position is exactly the same as the tribunal before Madam Justice McGillis for consideration.

In paragraph 108 the Court further states, quoting from Chief Justice Lamer in the case previously mentioned:

"'[It] will depend on the nature of the tribunal, the interests at stake, and other indices of independence such as oaths of office."

Of which I know none in respect of your position.

"'In some cases, a high level of independence will be required. For example, where the decisions of a tribunal affect the security of the person or a party (such as the Immigration Adjudicators in Mohammad, supra)'..."

And less so in a case having something to do with property taxes. Of course, that is obviously clear. You are now well aware that the courts regard these proceedings as requiring a high degree of judicial independence.

A very careful analysis follows for several paragraphs, and I will proceed to the conclusion of that. Paragraph 126 is where the review of the jurisprudence which had preceded that paragraph is summarized:

"A review of the jurisprudence from the Supreme Court of Canada confirms that judicial independence is part of the rules of natural justice, and as such applies to proceedings before administrative tribunals performing an adjudicative role. In determining the judicial independence of a tribunal, both its institutional independence and its institutional impartiality may be challenged. With respect to institutional independence, the classic test in Committee for Justice and Liberty v. National Energy Board, supra, as approved in Valente v. The Queen, supra and virtually all of the other Supreme Court of Canada cases, must be applied to an analysis of the three core characteristics of judicial independence: security of tenure, financial security and administrative independence. The test should be applied flexibly, having regard to the functions exercised by the tribunal. The level of institutional independence required will depend on the nature of the tribunal, the interests at stake and other indices of independence. Furthermore, in assessing the question of institutional independence, the practice of a tribunal is relevant. In relation to institutional impartiality, the two-pronged test outlined in R. v. Lippé, supra, must be applied."

In paragraph 131 is another long quote. I would like to turn to the top of the next page. It is dealing with the question of just how far tribunals can go in deciding questions of law. It says that the adjudicative function of a Human Rights Tribunal:

"'-- does not extend to general questions of law such as the one at issue in this case. These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform.'"

Paragraph 140 states:

"In the present case, the President appointed the three Tribunal members knowing that their appointments would expire before the completion of the lengthy pay equity hearing, and that it would be necessary to make an application to the Minister to extend their fixed term appointments. The appointment of one of the members was not extended in a timely manner, and the Tribunal's proceedings were suspended for a period of time."

My learned friends, no doubt, will try to establish that that has some bearing as a factual distinction, and I have no way of knowing whether it does or not. What I would like to submit at this point is that from the very outset we asked that these proceedings be suspended pending a determination of our judicial review application in the Federal Court. This was strenuously opposed by Mr. Binnie, who now has left us and gone to a higher place. It was opposed on the ground that this Tribunal should decide these questions on the basis of the facts to emerge.

The issues that were for judicial review involved a reasonable apprehension of bias, and it was only this Tribunal's decision to overlook the request we made that made it necessary, in fact, for us to proceed.

Paragraph 149 states:

"Counsel for the respondents further submitted that the uses of by-laws as a means of fixing remuneration for administrative tribunals was approved by Lamer C.J., in Canadian Pacific Ltd. v. Matsqui Indian Band, supra. I agree that Lamer C.J. approved, at page 51 of his decision, the use of by-laws by an Indian Band as a means of fixing the remuneration for members of its administrative tribunals. However, the context of that case involved administrative tribunals adjudicating disputes relating to property taxes, in relation to which Lamer C.J. concluded that a 'more flexible' approach in the application of the principles in Valente v. The Queen, supra was warranted. In the context of the present case, I have concluded that a Tribunal appointed under the Act, which performs a purely adjudicative role concerning fundamental human rights, requires a high level of independence. In the circumstances, I am satisfied that the approach taken by Lamer C.J., in which he approved the use of Indian Band by-laws to fix remuneration for its tribunal members, has no application in the present case."

In paragraph 150 her ladyship says:

"In applying the relevant principles in the context of the present case, I have concluded that the legislative scheme --"

And I point that out as significant.

"-- in the Act does not respect the essence of the condition of financial security, in that the remuneration of the members of a Tribunal is controlled by the Commission, an interested party in all Tribunal proceedings. Furthermore, any increase in the remuneration prescribed in the Commission's by-law may be obtained only by virtue of negotiations between the Tribunal Panel and the Commission. In that regard, I am satisfied that any negotiations between the Tribunal Panel and the Commission relating to the remuneration of Tribunal members would create a conflict of interest negatively impacting on the appearance of independence. The fact that Treasury Board must approve the remuneration provided in a by-law does not remove the conflict of interest or otherwise alleviate the weakness in a Tribunal's status created by the legislation. For those reasons alone, I have concluded that a fully informed and reasonable person considering all of the facts, would have a reasonable apprehension of bias on the part of a Tribunal."

Not "the" Tribunal; "a" Tribunal.

Why would we not have been told of any guidelines that might have emerged in this case, issued by the Commission to the Tribunal?

In paragraph 151 the final sentence states:

"Furthermore, I am of the opinion that the new practices implemented by virtue of the administrative reorganization in 1997 are not sufficient to correct the weakness in a Tribunal's status created by the impugned legislative provisions."

In paragraph 154, in the middle of the paragraph it is stated:

"However, I nevertheless wish to indicate that I have serious reservations concerning the impact on institutional impartiality arising from the power of the Commission, which is a litigant in all Tribunal proceedings, to issue binding guidelines on a Tribunal with respect to '...the manner in which, in the opinion of the Commission, any provision of the Act applies in a particular case...'"

So the power of the Commission exists to issue binding guidelines to the Tribunal in respect of the manner in which, in the opinion of the Commission, any provision of the Act applies in a particular case, namely, this case.

This particular applicability to the new interpretation being sought by the Commission to section 13(1) in the Zundel circumstance is of particular concern. Of course, it should be clear by now that this Tribunal is being asked to apply the law in circumstances which I have tried to argue before the Federal Court, and was obstructed at every stage by the Commission in proceeding, which would not have been within the jurisdiction of this Tribunal in a proper interpretation of the Act and that the Commission itself had operated with a reasonable apprehension of bias in the manner it sought your appointment.

Your appointments and their actions could not be resolved by the Federal Court before you began these proceedings, and that is as a result of the Commission's very careful and very systematic method of obstructing those proceedings even to the point of not obeying the Court Orders which they recently endeavoured to comply with.

Her ladyship states:

"I have no hesitation whatsoever in suggesting that, in order to preserve the institutional impartiality of a Tribunal appointed under the Act, the preferable and prudent course of action would be to permit the Commission to make guidelines which are non-binding on a Tribunal."

I might like to add that the only way that guidelines or any communication from the Commission to the Tribunal could be proper would be if they were revealed to both sides so that they could make submissions. There is no provision that requires those guidelines, which are now binding, which Madam Justice McGillis says might be okay if they were non-binding -- we might not even know about those.

In effect, it allows the Commission to communicate directly with the decision-making body that fashions itself as a judicial body without advising the other side.

I may be accused of knowing little and doing much in ignorance but, if I were to approach a Tribunal Member directly and speak to them about what I thought guidelines should be, in the absence of counsel for the other side, I am well aware that that would be a degree of impropriety that would result in the most serious consequences. But apparently the law provides the Commission the right to do so.

What troubles me is that Madam Justice McGillis seems to imply, although she is very concerned about the binding nature of those guidelines, that it would be okay to do that provided not that the other side is aware and has an opportunity to make submissions but that they are merely voluntary and non-binding.

In paragraph 142 her ladyship states:

"The Act contains no objective guarantee that the member's prospect of reappointment to complete a case would not be adversely affected by any decisions made by that member, whether in the context of the outstanding case or any other matter."

In paragraph 143 we come to the ratio of this case in the final sentence where it is stated:

"For that reason, I have concluded that the statutory scheme in the Act is inadequate in that it fails to provide Tribunal members with a sufficient guarantee of security of tenure. I have further concluded that the insufficient nature of the security of tenure, in the context of a Tribunal requiring a high level of independence, would raise a reasonable apprehension of bias in the mind of a fully informed and reasonable person."

I may say that I have that reasonable apprehension of bias, and I have had it all along. It appears that the Court has said that I am reasonable in my understanding. I think, with the greatest of respect, that no one should treat that understanding with contempt.

In paragraph 144, the concluding sentence states:

"However, given the recent lifting of the freeze --"

That is, the freeze on wages for Members of the Tribunal, I suppose, among others.

"-- the issue concerning the remuneration of the members of a Tribunal is likely to be raised in the near future, requiring discussions and negotiations between the president of the Tribunal Panel and officials of the Commission."

In the middle of paragraph 145 she states:

"Under the Act, only the Commission could appropriate the necessary funding from Parliament."

In paragraph 148, referring to the Judges Case, she states:

"The Judges' Case, supra also indicated that negotiating with a litigant creates a conflict of interest --"

Negotiations for salary are fairly significant to anyone who is required to serve as a judicial person. To negotiate with the Commission, who is sitting to my right and arguing this case, would seem to, and the courts have found, create a reasonable apprehension of bias.

It would be very difficult for anyone with a straight face to suggest that judges or persons in a judicial capacity should be in a position to negotiate their salaries with the counsel for the Respondent. The very statement becomes so preposterous that one realizes that, with a sense of equity and balance, this is not a minor matter.

Her ladyship is well aware of the Newfoundland Telephone case and states in paragraph 155 -- and that, I might say, was a unanimous decision of the Supreme Court of Canada, that a finding of a reasonable apprehension of bias vitiates the right to a fair hearing.

This, in my submission, is a complete answer to all those arguments that arise in 1985 out of the Atomic Energy of Canada case, because it is quoting from the Supreme Court of Canada, the highest authority, a unanimous judgment long after that case and, in my submission, makes it clear that that case no longer really applies. Much like Beauharnois in American First Amendment Law, it is not so much overruled as ignored.

That statement from that judgment says:

Not simply voidable. I emphasize that because that is what MacBain might be implying and that is what Atomic Energy might be implying in the Bill of Rights which was considered there. The Supreme Court of Canada has made unambiguous that it cannot be simply voidable.

"-- and rendered valid as a result of the subsequent decision of the tribunal. Procedural fairness is an essential aspect of any hearing before a tribunal. The damage created by apprehension of bias cannot be remedied. The hearing, and any subsequent order resulting from it, is void."

I cannot understand why no one else can see that. Why can you not hear it? Why can you not just apply it? Why am I having to argue it in your face?

In paragraph 156 she states:

"I am satisfied that the principles enunciated by the Supreme Court of Canada in Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), supra, apply to a finding of reasonable apprehension of bias based on a perceived lack of institutional independence on the part of an administrative tribunal. I have therefore concluded that the proceedings before the Tribunal in the present case are void."

If my friends are going to seize on the words "in the present case," I will reply that she says clearly that this is an institutional bias. She says further:

"The fundamental rights at issue in the present case cannot be determined by a Tribunal appointed under the Act --"

"A" tribunal; not "this" tribunal.

"-- until legislative reform, which has been sought for so many years, corrects the problems identified in relation to security of tenure and financial security."

There can be no ambiguity about this, and there should be no real debate about this. Everyone should be interested in the appearance of fairness. Why should it just be respondents who take this position when the law is so clear? Or do we have the rule of law? Or do we take the position that, because it is Ernst Zundel, we do whatever we can to avoid the application of what is so patently obvious, so patently clear, and so authoritative from the highest court in the land?

Let me deal with the obvious case that my friends will rely on and say that, by virtue of having continued with the Hearing, we have waived our rights to an impartial tribunal and that it was merely an avoidable mistake, as if everything that the Supreme Court of Canada has said doesn't exist, or that we should prefer the judgment of the Federal Court of Appeal of 1985. Let me say that I will endeavour to show that that case was, and is, distinguishable from this for a number of reasons and that it is quite clear that it was never intended to apply in the circumstances that are before you.

I am now going to refer to the question of the jurisdiction of a Human Rights Tribunal continuing its inquiry in re a complaint of Local 196 of the Energy & Chemical Workers Union, dated April 27, 1979. A copy is available for parties. It is a decision that my friends have alluded to, a judgment in the Federal Court of Appeal by Justices Pratte, Marceau and MacGuigan.

I will submit that this is what the law used to be, and they used to say "voidable" and they now say "void," probably because, when the courts have said "voidable," nothing changed and nothing substantial occurred to amend the law. So now the courts have said, "If 'voidable" doesn't work, we will say 'void.' Maybe you will listen this time. Maybe Parliament will do something. Maybe they will do something worse; maybe they will do something better, but they will do something."

Let me say that, even if the law was as stated here and not as stated in the Bell case and as stated in the Newfoundland reference, it is quite clear that this judgment and the whole MacBain scenario was considerably different, being under the Bill of Rights.

If I could refer briefly to the second page of the judgment, it says:

"While the Bill of Rights was successfully invoked in MacBain, the result here is different. The protection afforded by the Bill of Rights from infringement by federal statute has been held not to avail a person who does not initially invoke his rights thereunder."

This is not an application under the Bill of Rights. Madam Justice McGillis was applying the Charter, and section 11(d) of the Charter, by implication and by operation of law through natural justice, applies to these proceedings, and the results are different. So what's the problem? Why is that a mystery? Why is that entitling us to overrule the Supreme Court of Canada with an earlier judgment of the Court of Appeal? I find that mind-boggling. I have never heard an argument so convoluted, so ill-founded, but I know it is coming. It will be driven home relentlessly, repeatedly, by all these learned counsel who all want to proceed with this proceeding which has no validity and is void according to the judgment of Madam Justice McGillis. They want to say that we have waived a right to an impartial tribunal.

The next page states:

"-- the MacBain decision can apply only where the party affected asserted its rights from the earliest practicable time."

In my submission, we have argued the jurisdiction of this Tribunal from the outset. We have said that the Commission was biased in the way it referred the complaint to the Tribunal, to you. We have said that the Tribunal is operating in a scope of its law which is thoroughly -- actually, we brought before you the complete text of our judicial review application, and it was never considered. It was never even opened. We said, "This is before the Federal Court. We would like to defer to the Federal Court for these questions to be considered." You say, "No." Fine. We went on. It is not as if we did not put before you the issue of a reasonable apprehension of bias. We did it at the first opportunity and, of course, like every other argument I have made, it received what you consider due consideration.

THE CHAIRPERSON: Be careful, Mr. Christie.

MR. CHRISTIE: I am.

I don't understand why it can now be said that we did not at the earliest practicable time bring the issue of a reasonable apprehension of bias, bring the issue of the jurisdiction into question, bring all the issues that we have placed before the Federal Court for its consideration to you and said, "Please wait. These are serious, weighty questions that should not be ignored until the courts have ruled, because we don't want to go through this long, expensive process."

You know the results, and so do I.

MEMBER DEVINS: Mr. Christie, so I can be sure I understand, was the application that you brought before us initially with respect to reasonable apprehension of bias not with respect to the Commission's actions? As I understand the argument now, the reasonable apprehension of bias that is being relied upon is with respect to this Tribunal as opposed to the earlier assertion with respect to the Commission. Have I misunderstood something?

MR. CHRISTIE: The reasonable apprehension of bias which we alleged before the Federal Court involved the process by which the Commission referred the complaints to the Tribunal. It involves the Tribunal, not just the Commission, because the Tribunal acts on that. It does not take and fulfill any judicial role. We have not been required to fully explain our argument, and we haven't made it.

MEMBER DEVINS: But was it part of that earlier assertion that there was a lack of institutional independence which gave rise to your reasonable apprehension of bias?

MR. CHRISTIE: Had we been able to advance the argument, yes. Whether it was fully articulated in precisely those words, I would have to look and see because it has been a long time, and I don't remember exactly what it said.

MEMBER DEVINS: It would be helpful, actually, to have that reference at hand.

MR. CHRISTIE: Actually, I filed it and gave copies. Whether you still have them I don't know. I do recall on the first day I said, "Here is what we have given the Federal Court," and it was all there. It was very thick, an inch and a half at least. Whatever was there is still in your possession somewhere.

MEMBER DEVINS: If there is a specific reference that you could refer us to, it would be helpful.

MR. CHRISTIE: I am sure it would, and I wish I could, but I can't because I don't remember everything that was there.

THE CHAIRPERSON: It would be in the first volume of evidence?

MR. CHRISTIE: No, it wasn't in evidence. It was an exhibit.

THE CHAIRPERSON: It was an exhibit, but it was brought before this Tribunal and this Tribunal made a ruling on it, which is found in the first volume of evidence.

MR. CHRISTIE: I see what you mean.

THE CHAIRPERSON: It had to do with your submission with respect to procedures that were followed before the Commission, and we made a ruling on your submissions in that regard.

MR. CHRISTIE: Actually, I clearly recall that that was one aspect of the judicial review application. My request to the Tribunal at the outset was that the entire judicial review application should be proceeded with before the Court before the Tribunal began its consideration into the merits of the complaint.

THE CHAIRPERSON: As I recall, your submission with respect to that application before us occupied a day or two, and we delivered a ruling. The effect of the ruling was that that should be a matter that would be dealt with by the courts, and we proceeded with the Hearing.

MR. CHRISTIE: I asked for a stay while the courts considered it or we completed what has been a long process, and I think your ruling was very clear. What you said was there.

THE CHAIRPERSON: As a matter of interest, did it proceed to judicial review?

MR. CHRISTIE: It is still going on. We are still trying to get there. My learned friends are very skillful. Delay is the tactic of the Commission, in my submission, and they are very effective at it, with regard to the judicial review application. They were very anxious to go here. I can't imagine why, but maybe I am learning from the Bell case.

In the judgment of Mr. Justice Marceau, a great deal of weight was placed upon the fact that the Atomic Energy of Canada Ltd. had acknowledged, both expressly and impliedly, its complete confidence in the objectivity of the tribunal. I hope it cannot be assumed that I have taken that position.

The position taken by AECL was that the tribunal was without jurisdiction, regardless of whether it might have waived its right to object or not. I have never waived the right to object, either expressly or impliedly. I have contended that this issue was entirely beyond the jurisdiction of the Tribunal, beyond the jurisdiction of the Act. I have done what I have done and put before the courts what I have.

I think Mr. Justice MacGuigan's judgment, being the most complete perhaps, defined that the MacBain decision cannot be taken as meaning that the Act is void, but merely voidable. At page 15 of 37, it says:

"It is indeed only since the Bill of Rights and because of the protection this special statute assures to basic rights that Courts are entitled to remedy a breach of natural justice arising from the legislation itself."

Obviously, they were concerned with the Bill of Rights which was considered applicable to make an Act voidable, but has never been viewed as having the wide powers of the Charter, specifically section 52.

Mr. Justice Marceau said:

"It cannot seriously be contended that it be so."

That the Tribunal is without jurisdiction.

"Actual bias almost certainly affects the capacity of the Tribunal to act and could possibly be seen as going, for that reason, to jurisdiction, the more so since the decision of such a biased Tribunal would likely never be allowed to stand; but simple apprehension of bias is another matter altogether in that it does not strike at the very capacity of the Tribunal to act properly."

With respect, I would submit that, if you compare those words to the words of the Chief Justice in the Newfoundland case, they are not the law today. It is almost diametrically opposed to what the Supreme Court of Canada said, which I just read to you from the judgment of the Supreme Court of Canada in the Newfoundland case.

The Court makes the point of saying:

"A Tribunal appointed so as to give rise to an apprehension of bias is, as I understand the jurisprudence, only susceptible of being disqualified. Correlatively, the right of the individual who apprehends bias on the part of the Tribunal before which he is brought has always been, again as I understand the jurisprudence, a right to object to being judged by the Tribunal, but a right that exists only until he expressly or impliedly submits to it."

I would like to say that throughout these proceedings I hope it has been clear, and I submit that it has, that we submit under protest and we have objected in a number of ways. Were that not the case, the law is no longer that the actions of the Tribunal are merely voidable but that they are void.

At the top of the next page:

"The Court therefore granted a declaration that the provisions of subsections 39(1) and 39(5) [See Note 1 below] of the Canadian Human Rights Act were inoperative in so far as the particular complaint filed against the appellant/applicant was concerned."

Those are not the words of Madam Justice McGillis in the Bell Canada case.

Then we come to the judgment of Mr. Justice MacGuigan at the top of the next page:

"Unlike the appellant/applicant in the MacBain case, who commenced proceedings alleging bias even before the first hearing of the Tribunal on the complaint against him and in fact withdrew from the hearing, AECL, in the view I take of the facts, both expressly and impliedly waived its right to challenge the jurisdiction of the Tribunal here. AECL was in possession of all the pertinent facts which formed the basis of this Court's decision in the MacBain case--"

We have already heard that phrase repeated and it is the one, I take it, that will be used, if at all, to force us to go on with these proceedings.

In my submission, what facts are we in possession of with regard to the guidelines that apparently are issued by the Commission to the Tribunal? Do we have any of those?

"In fact, the anomalous role of the Commission vis-à-vis the Tribunal was very much on the mind of counsel for the AECL on the first day of the hearing, when he argued that the Commission was not entitled to take an advocate's position before a Tribunal unless the complainant could not carry the case."

That was not my argument. Then he apparently said, unlike anything I have ever said:

"We do not dispute ... your independence - we are not challenging your independence.... We are not saying that you are going to be biased or in any way tainted by the fact that you get your life from my opponent..."

I don't think you have heard anything like that from me.

The earliest practicable opportunity to raise the issues of the McGillis judgment, in my submission, arise out of the fact that we have the rule of law which says that the law stands until it is overturned and that the courts have supervisory jurisdiction over administrative tribunals, particularly the Federal Court over this Tribunal. When a Federal Court judgment comes down that makes a judgment about the systemic arrangement of the Canadian Human Rights Tribunals, that becomes the law. Whatever the facts may be do not alter because of previous jurisprudence, MacBain and others, being among them, that one cannot challenge those things that are already adjudicated. One does not then start to overturn the law in a Human Rights Tribunal. Usually one takes law from the courts, and tribunals apply it.

In my submission, we have waived neither implicitly nor explicitly any arguments that are now available to us, and we are making them at the first opportunity because the courts have now made clear that the actions of this Tribunal and any Tribunal under this Act are void. Until that pronouncement, the law was not as clear as it is now. We have taken steps at the earliest practicable opportunity to bring before you the authority which, in my submission, is really indisputable.

That is why they are not trying to argue against the judgment, but simply trying to argue, as they will in a few moments, that it can be ignored because we are not entitled to an independent tribunal, that we are required to proceed with what is otherwise a tainted tribunal because, after all, we didn't object at the first opportunity. That argument then was a weak and frivolous one. It apparently had some merit before the Federal Court of Appeal. It is no longer an argument that has merit.

Rights of persons should not depend on their ability to maintain them before tribunals that are subject to reasonable apprehension of bias because of their systemic origin, particularly when the very jurisdiction of the tribunal is questioned, if not for that precise reason, for similar reasons.

THE CHAIRPERSON: Mr. Christie, are you going to be a while yet?

MR. CHRISTIE: Yes.

THE CHAIRPERSON: Would this be an appropriate time to break?

MR. CHRISTIE: Yes.

THE CHAIRPERSON: We will recess until 2:15.

--- Luncheon Recess at 1:10 p.m.

--- Upon resuming at 2:30 p.m.

THE CHAIRPERSON: Mr. Christie, please.

MR. CHRISTIE: I will carry on, if I may, for a moment with the analysis of the judgment in the case of Atomic Energy of Canada Ltd. [1986] 1 F.C. 103.

I would just like to refer to the bottom of the page I was mentioning before lunch regarding the earliest practicable opportunity. I submit that we have done that by bringing the motion that we have. Further, at the bottom of the page, it quotes Halsbury's Laws of England, Volume 1, paragraph 71, page 87:

"The right to impugn proceedings tainted by the participation of an adjudicator disqualified by interest or likelihood of bias may be lost by express or implied waiver of the right to object. There is no waiver or acquiescence unless the party entitled to object to an adjudicator's participation was made fully aware of the nature of the disqualification and had an adequate opportunity of objecting."

I say again that this is all subject to and really overruled by the Supreme Court of Canada in the case that I will refer to next. Be that as it may, my submission is that only after Madam Justice McGillis' judgment are we aware of the full extent of the systemic bias inherent in the process of appointment and the process of remuneration of the Human Rights Tribunal.

Farther down on that page it says, and I quote from Halsbury:

"if the decision were absolutely null and void in relation to the person aggrieved, he would not be precluded from impugning it because of waiver or acquiescence."

That is particularly germane because, in my submission, the Supreme Court of Canada in Newfoundland and in a further case of Curragh Inc. which I will refer to in a moment has made it very clear that the decision is absolutely null and void.

Farther on on that same page the reference to Halsbury reads:

"The general rule is that want of jurisdiction cannot be cured by such conduct on the part of the person over whom the purported jurisdiction is exercised, whereas voidable acts may become unimpeachable as a result of such conduct."

On the next page, in the brackets after the word "MacBain":

"In the present case as in the MacBain decision counsel made no argument based on the Canadian Charter of Rights and Freedoms."

I would point out that the Bell case is clearly relying on section 11(d) and applying it by the rules of natural justice to the provisions of a Canadian Human Rights Tribunal. It is actually the Charter that is being applied in the provisions of the Bell decision.

Turning the page, I refer briefly to the bottom of the page to reiterate that the MacBain decision rests on paragraph 2(e) of the Bill of Rights.

"The protection afforded by the Bill of Rights is, nevertheless, a limited one, particularly where, as in paragraphs 2(c) and 2(e) to (g), it is formulated in the terms 'no law of Canada shall ... deprive a person...'"

Of course, the Charter of Rights does not phrase things in that way. The Charter of Rights is not a limited right. It is a right that could be overruled by section 1 considerations, but Madam Justice McGillis found no such justification and no court has ever found such justification for a reasonable apprehension of bias. They might be asked to do so if they were asked to consider the issue of necessity, and no doubt that will be raised before them. It would be my submission that necessity and the application of it cannot rest with the Tribunal whose very jurisdiction is impugned.

"The protection from infringement by federal statute has been held not to avail a person who does not initially invoke his rights under this subsection."

That again refers to the Bill of Rights. I make the point that the MacBain decision and the Atomic Energy decision rested on the Bill of Rights, not the Charter of Rights.

They make the further point down below:

"I cannot see how the appellant can say he was 'deprived' of that which he did not ask for."

"-- the Courts have not approached issues of bias in terms of jurisdiction at all --"

Well, they have now, and it cannot be pretended for a moment that they have not.

Farther down it quotes from Carswell at page 97:

"'In principle, all ultra vires administrative actions are void, not voidable, and there are no degrees of invalidity'"

That is exactly what the Supreme Court has said in Newfoundland and, I will say, has been held to have said in the case of the Bell Telephone Co. which we have just referred to, and it is clearly the law today.

On the final page it says:

"Taken against the background of the law as a whole, the MacBain decision can therefore be put in context in three simple propositions: (1) had it not been for the Bill of Rights, the legislative scheme alone would have been a complete answer to the allegation of reasonable apprehension of bias;--"

That is no longer the law, as Newfoundland has made clear.

"-- (2) the Bill of Rights applies to nullify such a legislative infringement of rights to the extent that the rights have been invoked in time;--"

In answer to that, this is not a Bill of Rights argument in the case of Bell Telephone and it is not a Bill of Rights argument here. It is an argument based on natural justice depriving the board of jurisdiction because of the fact that the provisions of the Charter, section 11(d), are infringed.

"-- (3) because the Bill of Rights here acts only negatively, by preventing deprival of rights, it affords no protection to those who even impliedly waive their rights."

As I said, each of these three criteria rest upon the Bill of Rights, and the Bill of Rights is not the issue in Bell; it is not the issue in Curragh; it is not the issue in the Newfoundland Telephone case; and it was not the issue upon which Madam Justice McGillis ruled that all tribunals were null and void.

"In the result, the reasoning of the MacBain decision, based as it is on the effect of the Canadian Bill of Rights, cannot apply to AECL, which until now has never claimed its fundamental right to be free from a reasonable apprehension of bias."

In my submission, we have claimed the right to be free of a reasonable apprehension of bias as soon as we had reason to believe the law held that it existed, and we had that reason when we became aware of the March 23 judgment of the Federal Court of Canada.

It goes on further to say:

"Thus the MacBain decision will, in its own words 'affect only the appellant/applicant in this case and possibly several other cases where the fact situation is identical to this case.'"

That is specifically not what Madam Justice McGillis said. There is a very serious distinction between the MacBain decision, the Atomic Energy of Canada decision and, of course, the latter decisions which we are asking you to apply, namely, Bell Canada which we have provided, and the two that I am going to refer to now. They are, first of all, the Newfoundland case to which Madam Justice McGillis made reference.

I am not going to go through all the facts in the case, but I can tell you in conclusion that they were of such a nature that the Court found a reasonable apprehension of bias existed.

On page 43 of 45, which is very near the end of the case, they deal with the issue of what effect that has. Under "Consequences of a Finding of Bias," it says:

"Everyone appearing before administrative boards is entitled to be treated fairly. It is an independent and unqualified right. As I have stated, it is impossible to have a fair hearing or to have procedural fairness if a reasonable apprehension of bias has been established. If there has been a denial of a right to a fair hearing it cannot be cured by the tribunal's subsequent decision. A decision of a tribunal which denied the parties a fair hearing cannot be simply voidable and rendered valid as a result of the subsequent decision of the tribunal. Procedural fairness is an essential aspect of any hearing before a tribunal. The damage created by apprehension of bias cannot be remedied. The hearing, and any subsequent order resulting from it, is void."

Then it cites Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, again Mr. Justice Le Dain. In quoting from there, at the bottom of the page you will find the line:

"The right to a fair hearing must be regarded as an independent unqualified right --"

Et cetera.

The final paragraph states:

"In my view, this principle is also applicable to this case. In the circumstances, there is no alternative but to declare that the Order of the Board of Commissioners of Public Utilities is void."

Then the disposition is interesting in that it says:

"In the result the appeal will be allowed, the order of the Court of Appeal will be set aside, and Order...of the Board of Commissioners of Public Utilities is declared void ab initio."

Not "voidable;" "void ab initio."

In the context of this case, in Regina v. Curragh there was some discussion about what that meant. This was a judgment in which the members of the Court supporting the judgment were Chief Justice Lamer, La Forest, L'Heureux-Dubé, Mr. Justice Gonthier, Mr. Justice Cory and Mr. Justice Iacobucci. The judgment was given by La Forest and Cory, and there was a dissent from Madam Justice McLachlin and Mr. Justice Major.

In the judgment of the Court given by Mr. Justice La Forest and Cory, at the bottom of the page, if you look at paragraph 4, there was a motion for recusal, very much like the motion that I have made, to suggest that the board recuse itself in light of the reasonable apprehension finding, which is basically this motion.

"The trial judge should have recused himself, but he denied the motion. It is sufficient to observe that the Crown sought unsuccessfully to appeal this interlocutory decision. The Crown did not waive its rights to raise the issue later and quite properly did so in its appeal of the order of the trial judge staying the action. The Court of Appeal unanimously found that there was a reasonable apprehension of bias and ordered a new trial. We agree with this conclusion."

Then paragraph 5, in my submission, becomes the important part of the judgment.

"The properly drawn conclusion that there is a reasonable apprehension of bias will ordinarily lead inexorably to the decision that a new trial must be held. In circumstances where reasonable apprehension of bias is demonstrated the trial judge has no further jurisdiction in the proceedings and there is no alternative to a new trial.

Then they refer to the Newfoundland Telephone case, and they quote exactly what I have read to you, actually both from that case and from the Bell case, and the words end with "void." Then it goes on to say:

"If that be true of a proceeding before an administrative tribunal it must apply with even greater force to a criminal trial."

Farther down they say:

"The right to a trial before an impartial judge is of fundamental importance to our system of justice. Should it be concluded by an appellate court that the words or actions of a trial judge have exhibited bias or demonstrated a reasonable apprehension of bias then a basic right has been breached and the exhibited bias renders the trial unfair. Generally the decision reached and the orders made in the course of a trial that is found by a court of appeal to be unfair as a result of bias are void and unenforceable."

Then in paragraph 8:

"Certainly, every order of a trial court is enforceable and must be obeyed until it is declared void by an appellate court. In this sense the order may be viewed as voidable. However, when a court of appeal determines that the trial judge was biased or demonstrated a reasonable apprehension of bias, that finding --"

And I emphasize these words.

"-- retroactively renders all the decisions and orders made during the trial void and without effect.

I just pause to interject this. The Federal Court Trial Division is the appellate court from the Canadian Human Rights Tribunal. That is the only court to which an appeal by judicial review or by any application can be made to deal with or to appeal from the judgments of this Tribunal.

The appellate court has made clear, on an analysis of facts that are not dependent on the facts of this case but are, in fact, jurisdictional in nature, that go to the very core of jurisdiction of this Tribunal -- the appellate court has determined that there is demonstrated a reasonable apprehension of bias. They have said so clearly and equivocally. Therefore, the Court of Appeal has determined that this Tribunal has demonstrated a reasonable apprehension of bias. It matters not how it arose. It matters not that it is actual as opposed to reasonably apprehended. Once it is there, it is there.

It cannot be determined by a tribunal, having heard a court determine that it is there, that it is not there.

THE CHAIRPERSON: This case is referring to the Court of Appeal, is it not?

MR. CHRISTIE: It is. I just tried to submit to you that this Tribunal has one appellate court, and that is the Federal Court Trial Division.

THE CHAIRPERSON: Obviously, the trial judge in the Bell case is appealable to the Court of Appeal.

MR. CHRISTIE: I agree, as is the judgment of the appellate court of any province appealable to the Supreme Court. It is not that the judgment of the Federal Court Trial Division stands forever and a day, but it does stand until it is appealed and either overturned or upheld.

I am simply saying that it is not for this Tribunal to say that it has no effect either by way of waiver or by any other reason.

My submission is this. The judgments of the Supreme Court of Canada, both in Newfoundland Telephone and in this case of Curragh Inc., makes very clear that, when an appellate court has determined that reasonable apprehension of bias exists, that finding retroactively renders all the decisions and orders made during the trial void and without effect, void and without effect retroactively.

What I am saying is that, even if my friends could say -- and I have tried to suggest that they cannot, but no doubt they will -- that by some means, by silence, I suppose, on some aspect of this matter, there has been a waiver, the courts have determined that, when the higher court or, in this case, a court has ruled that bias exists, it is a retroactive rendering of voidness of any proceedings that precede it. A voidable proceeding could be waived. A void proceeding cannot.

This judgment and the judgment in Bell and the judgment in Newfoundland say "void," period.

MEMBER DEVINS: Mr. Christie, I think you have come to the nub of this issue, and that is: Are these proceedings void before a court tells us that they are in the context of these proceedings? I understand your argument with respect to the applicability of Justice McGillis' decision in Bell, but are these proceedings void before the case is taken to Federal Court and the Federal Court says, "Yes, in this matter it is void?"

MR. CHRISTIE: I respectfully submit that it is not before a court that says these proceedings are void. Madam Justice McGillis says "a tribunal," not "the tribunal" or "this tribunal", is void. We are not talking about a state of affairs where a court has not pronounced these proceedings and any tribunals under that régime void. The court has.

MEMBER DEVINS: Although I suppose part of the difficulty in that, which I would like you to address, is that none of the parties here has had an opportunity to argue before Madam Justice McGillis about the nature of the proceedings. If, in fact, your argument is right, then everybody else in every other tribunal has been denied their right to natural justice to make the arguments with respect to the nature of the institutional bias.

MR. CHRISTIE: Madam Justice McGillis had one case before her, but she made a judgment that affects all the tribunals that are subject to the same régime. The words are not limited, as they were in MacBain, to "this case." Her words are very clear.

It would be very tortured reasoning to attempt to say that, until another judge of the Federal Court says the same thing, it has no effect. It has effect, unless the meaning is somehow obscured, which I submit is not the case; it is very clear. If some other meaning could be extracted from the words, then it would be my submission that those who wish to rashly go ahead with what the courts have said is void would be able to find some means to justify it. It would not be right, but they could perhaps do it. They are not unclear.

THE CHAIRPERSON: On a slightly different point, this case seems to say that, until a court of last resort has spoken, it is voidable, not void.

MR. CHRISTIE: I totally disagree, with all respect. It said it is void retroactively, if we read paragraph 9.

THE CHAIRPERSON: "In this sense the order may be viewed as voidable."

MR. CHRISTIE: Read the next sentence:

"-- when a court of appeal determines that the trial judge was biased or demonstrated a reasonable apprehension of bias, that finding retroactively renders all the decisions and orders made during the trial void and without effect."

Of course, until the appellate court rules, they are still binding. The appellate court, as I tried to say, to this Tribunal and to all tribunals is the Federal Court, and the Federal Court has spoken. You may not like what they said, but you have no choice but to say that it has spoken or else to say that it is ambiguous or that we can interpret it in such a way that, as in MacBain, it is only applicable to this case. If Madam Justice McGillis had wanted to say that, she could have. She didn't.

THE CHAIRPERSON: The cases are clear that it is void; the cases are clear on that point. However, because of the statement in Curragh, for example, it recognizes the dilemma that tribunals such as ours are put in, and it is a question of how the tribunal comports itself during this period when there is not a final adjudication on the issue. That is what we are here to talk about.

MR. CHRISTIE: When you say "until there is a final adjudication on the issue," I don't think the court in Curragh says until there is final adjudication. It says until the appellate court adjudicates.

THE CHAIRPERSON: I meant it in the same sense.

MR. CHRISTIE: But the appellate court is not the final court in our country. Even if it is a Provincial Court or a Supreme Court trial, the appellate court is not the final court.

When the appellate court finds a reasonable apprehension of bias, all the tribunal proceedings or court proceedings are void, retroactively void.

We don't have to wait until Madam Justice McGillis' judgment is appealed. It stands until it is appealed, and it is valid and totally binding until it is appealed. That is why, if there is a real concern for preventing a reasonable apprehension of bias, creating a feeling of confidence that the tribunals are operating in an atmosphere where a reasonable apprehension of bias is not foreseeable, everyone -- not just me, but the Commission and everyone -- should be equally interested in (a) not proceeding with what may be void and is today void and may ultimately always be void, but proceeding as quickly as possible, if necessary, to appeal or to pass other legislation.

I wish to refer only to paragraph 9 on this page. At the bottom of paragraph 9 it says:

"However there can be no doubt that once the court of appeal ruled that the trial judge had demonstrated a reasonable apprehension of bias it retroactively rendered void and without effect the order staying the charges."

I would put it this way. Once Madam Justice McGillis of the only appellate court to which this Tribunal is subordinate, once she has made a ruling that there exists systemically a reasonable apprehension of bias, it renders retroactively void and without effect any of the orders of this Tribunal, or any other tribunal subject to the same régime.

"The Court of Appeal properly found that the trial judge ought to have recused himself when the motion was brought before him."

As I will submit that you ought to recuse yourselves. Once it is clear to you that the Court has determined a reasonable apprehension of bias, you ought not to pursue this argument any further.

"Whether he might have had authority to grant a stay after the unfortunate phone call was made is not in issue. Whatever authority he may have had was retroactively removed by the finding that he had exhibited a reasonable apprehension of bias."

And I say it matters not whether it is a personal apprehension of bias, actual in the facts of the case, or a systemic reasonable apprehension of bias founded on the appointment of the Tribunal. It is not a distinction made in the cases as to how the bias arises. If a reasonable apprehension of bias arises, it is determined, it is decided, it is clear that it retroactively renders void all decisions of the impugned body.

Those are my submissions on that point.

In paragraph 11 they deal with the points of Madam Justice McLachlin and in the next paragraph they deal with the argument of Mr. Justice Major. They say:

"Our colleagues contend that allegations of bias should be made in a timely fashion and cite American cases for this proposition. We accept that in order to maintain the integrity of the court's authority such allegations must, as a general rule, be brought forward as soon as it is reasonably possible to do so. However, in this case, the Crown took the courageous position of moving to have the trial judge recuse himself within five days of his demonstration of bias or at least the reasonable apprehension of bias."

I don't know how many days it has been since March 23 when the judgment came out, but in that period of time, I submit, we have not been remiss. We brought this to your attention and asked you to recuse yourselves, to withdraw from the case, to adjourn it sine die, and wait for any further developments.

"Thus it moved in a timely, appropriate and reasonable manner. The Crown certainly cannot be faulted on that score."

At the bottom of that page in paragraph 13:

"Yet, in this case the delays and much of the legal costs incurred arise from systemic problems that were beyond the control of the appellants."

That indicates what effect the Court found existed in the circumstances to justify the decision to find that the court had acted without authority.

On the facts of this case, in my submission, I have raised certainly at the outset the question of the jurisdiction of this Tribunal. I have asked the Tribunal to defer to the Court on a number of issues, one of which was not only the apprehension but bias in the actions of the Commission in endeavouring to pursue complaints for frivolous, vexatious and unjustified reasons.

In the course of this Hearing, you have refused to allow us to cross-examine on evidence which brought out the facts which would have demonstrated that bias. You have refused to allow us to lead evidence at the outset on the jurisdictional question, when Mr. Klatt and Ingrid Rimland were here. You refused to allow us to challenge the Members for cause as to whether any of them were members of or supporters of any of the Intervenors who are definitely antithetical to the position of the Respondent. You have denied the right of cross-examination of witnesses for the Complainants respecting their bias or their motives in bringing the complaints to show that this is a frivolous or vexatious proceeding.

You have allowed a number of basically repetitive Intervenors, many of them representing special interest groups who are hostile to the Respondent, which has created an atmosphere, in my submission, which has demonstrated bias. Certainly they are biased. By allowing them to intervene in massive numbers, to repeat each other and to support each other --

THE CHAIRPERSON: What does all this have to do with what we are obliged to do in an appropriate way with respect to the Bell case?

MR. CHRISTIE: I am submitting to you --

THE CHAIRPERSON: What is the point of posing those propositions, which are your opinion, before us at this stage? If we are guilty of some actual bias, as you seem to suggest, or of some apprehension of bias, you have had your opportunity all the way through this Hearing to take any appropriate action you deem to be in the interests of your client.

I have suggested to you that the issue before us is how this Tribunal comports itself in the face of the Bell case, and we would appreciate whatever assistance you can give us with respect to that issue.

MR. CHRISTIE: For one moment, look at it from our perspective.

We are faced with these concerns, and now you tell us that you will rule on whether the Bell case renders your actions void and has determined that there is a reasonable apprehension of bias. I submit to you that it is really not a proper question for you to ask. It is not a proper argument to force me to make. But, in view of the fact that you have refused to simply follow the request of the Commission, you have forced me to make the submission, which is very embarrassing, no doubt, to both you and me.

We are asked to argue that bias disqualifies you, to the very people who have been determined to be biased by a court. In my submission, it is improper for you to ask us to justify what the court has made clear you should do. You are not a court of appeal.

THE CHAIRPERSON: I can only conclude that you are not listening to what I am saying, so go on with your submissions. I have asked you on two occasions to assist us in deciding what course of action this Tribunal should take in the face of the Bell case, and that is why we are here. If you have something to tell us about that, please do so.

MR. CHRISTIE: I ask you to consider that you have created a bizarre reversal of roles by raising the question as you have. You are asking me to submit to you how you should comport yourselves in relation to the Bell case.

The law is so clear. When you say, as you did at the outset -- you asked Mr. Freiman, "How can we avoid giving deference to Bell?" Why should you want to avoid giving deference to Bell?

THE CHAIRPERSON: Your submission is that we should give deference to Bell.

MR. CHRISTIE: Not only that, but it is entirely clear --

THE CHAIRPERSON: May I have your next submission?

MR. CHRISTIE: What I am submitting is that the attitude that you are exhibiting in those remarks is indicative of the fact that you are not impartial on the subject.

THE CHAIRPERSON: There are a number of alternatives that one might conceive in the face of the Bell decision. We could say, "The Bell decision says that the proceedings are void, so let's pack up and everybody go home." Forget about the fact that we have taken several weeks of evidence and spent a good deal of time. That is what the decision says, that we should simply stop the proceedings and everybody go home.

Another alternative might be that we adjourn and wait for the Court of Appeal to decide the issue. There might be some other alternative.

That is what this Tribunal is asking you and other counsel to assist us with. To suggest to us that the very fact that we are asking the assistance of counsel displays actual bias on our part is an astounding proposition. I would have thought that it would be a lack of total deference to all interested parties in these proceedings to have made a decision between the three of us without consulting anybody who has a direct interest. That is what the Tribunal is thinking about, and that is where we are respectfully asking you for your assistance on which alternative this Tribunal has in the face of the Bell decision.

I need say nothing more than that.

MR. CHRISTIE: Let me say something about the subject of necessity.

The only case where necessity has been used to overcome a demonstrated status of void legislation is a case where the Manitoba statutes from 1870 to 1990-something were declared to be of no force and effect because they were not translated into French. All the provincial statutes of a whole province were rendered by that decision of no force or effect.

It is by no means comparable that, no matter how important some people may think human rights are, a piece of legislation in which some 40 people have a vested interest and some unlimited number of complainants have grievances might for a time rest unresolved. There is no comparison between the effect of that upon society and the dissolution of the legislative authority of a province from 1870 to the present.

If any such judgment has ever been made, it has never been made by a tribunal in its own interest. It would appear an inappropriate thing for a tribunal to do.

MEMBER DEVINS: Mr. Christie, does it follow from your earlier argument that the impact of the Bell decision is that this Tribunal is void and all tribunals are void and that it is retroactive -- does that mean that in every case that has ever existed the decisions of the tribunals are void? Does that make any difference in terms of your argument, Mr. Christie, with respect to the application of the doctrine?

MR. CHRISTIE: Not particularly. It had no particular significance in terms of preventing the Supreme Court of Canada from rendering the laws of Manitoba void for one simple reason, that they had not been translated since, I think, 1889 when they passed the legislation to only enact statutes in English. It didn't stop the Court from doing that, but it did have the effect in that case of saying that for a time Manitoba could continue its existing laws.

You are asking: Might this affect all decisions of the Tribunal previous to now? For those decisions that are in progress, one might say this. What is the prejudice to the Commission? They have not closed their case. Is there some way they could demonstrate to you perhaps that Madam Justice McGillis was all wrong?

Say we open the question and we allow this to go forward. The issue is still there. Would the Commission be then able to satisfy you that Madam Justice McGillis was wrong? What could you do about it? Could you overrule Madam Justice McGillis? I don't think so. Could you say that she is distinguishable? Have we waived our rights? Even if we had, would that affect the ability of this Tribunal to rule in favour of the Complainants? Would it make their judgment valid? In my submission, it would not.

What has happened in other tribunals is not before you. If other tribunals have made judgments over the last how many years that there has been human rights legislation, those cases that have already been dealt with, ruled on, appealed and are distant memories really have no effect. It could very well be that the legislation is declared unconstitutional at some time. Does that mean that all the judgments that were made under any law that was later declared unconstitutional are re-opened? No. The world doesn't work that way.

I have actually acted for people who were convicted under sections of the Criminal Code that were later declared of no force or effect. Other people have been convicted perhaps under those same sections. Does that mean they will go back to court? No.

Cases that are in progress are affected, and we are in progress.

MEMBER DEVINS: So the voidness only operates in cases that are in progress?

MR. CHRISTIE: It only has practical effect to cases that are in progress.

MEMBER DEVINS: As I understand your argument, the doctrine of necessity does not apply but, even if it did, this is not the proper forum to entertain it.

MR. CHRISTIE: That is my submission.

MEMBER DEVINS: Thank you.

MR. CHRISTIE: Surely, necessity, if it is to be applied, has to be applied by a court and then only in circumstances that are quite unusual.

In my submission, if the Tribunal is to take the wise course of adjourning sine die or in whatever way is necessary to have the matter determined by a court -- and those questions, in my submission, were very germane and intelligent. These are questions that have to be resolved, and I took them down as best I could: Does the Tribunal have jurisdiction to embark on its inquiry? That is the first, most fundamental question. Can the parties waive any statutory defect in the scheme? As far as I can read the law, if it goes to a reasonable apprehension of bias and that has been established by a court, there is no such thing as waiving a void proceeding, but that is for the court to decide. Have the parties waived? That, I guess, is a factual consideration.

Would the Tribunal have jurisdiction to continue if legislation were changed?

Those are challenging questions which, in my submission, should be answered by a court.

But why put you in the position that I suppose my friends and by your own judgment you have basically put yourselves in by asking for these arguments? Why not take the wise course of adjourning sine die? Of course, we all get notice through the mails. If the Court has decided that "void" does not mean void or that all tribunals in progress to which objections have not been taken in this way, contrary to what Madam Justice McGillis says, can be continued, then so be it.

THE CHAIRPERSON: You are saying that the integrity of these proceedings should be preserved pending a final disposition of the issue in the Bell case.

MR. CHRISTIE: There are other considerations. Certainly the integrity of the proceedings is not compromised beyond what the Court has said. You have accomplished that concession from me. But may I ask to consider this?

Here is a respondent who, because of the arrangement of these tribunals -- and I heard you say that we all have another life somewhere. Because of the fact that you are, in effect, appointed not in a full-time job, this Tribunal has been extremely hard, not on local counsel who live here, but on the accused and his counsel. We have two weeks one month, one week next month, a couple of weeks here -- we have gone on for a year. You think it is difficult and a great deal of money has been spent. Yes, I am sure it has. But to go on with what is obviously a tribunal that cannot sit like a court would for a block of time and say, "We are going to do it in this period of time," and we give a reasonable estimate of all the time -- oh, no.

THE CHAIRPERSON: I have a fairly clear recollection that the timing of these Hearings has been pretty well dictated by the availability of counsel.

MR. CHRISTIE: That may be, but keep in mind that if we had been given -- and, of course, we couldn't do what most times you do. All counsel give an estimate of time, and then we get a date which would meet all counsel's convenience, and those are blocked off.

When counsel for Mr. Zundel are faced with a week here and two weeks there, it is infinitely more expensive than coming here and dealing with it and working it through to conclusion. You can at least remember what has gone on yesterday or two weeks ago, but you can't very well remember what happened a month and six months ago.

The procedure that has been dictated by the manner in which the Tribunal is appointed and operates has had a hardship on perhaps everyone, but certainly the Respondent. What happens if we adjourn sine die preserving the integrity of the Tribunal, et cetera, and it takes six weeks, six months or goodness how long before the Court of Appeal can resolve it, if it does, or legislation can be passed? Let's assume that in that period of time we are human beings with fallible memories and other commitments. How have we had a trial within a reasonable time? Like section 11(d), the principles of natural justice demand that we get it over with. It is part of at least knowing what the facts are.

That delay -- and it has been considerable so far. I agree that it has been at the convenience of counsel and circumstances beyond everybody's control, but it is part of the system of the way these tribunals are set up.

If, for instance, you were full-time judicial officers with a commitment to this case that simply is to start it, to hear it and to finish it at one sitting and you are not, as at least lawyers are, obliged to do other things -- we hope that this would not be our only case and that it would not be the only case that you had to sit on. At least, we could have one period of time. That didn't happen.

If there is a long period of delay, in my submission, it would be prejudicial to a fair hearing, and costly.

MEMBER DEVINS: Mr. Christie, you have raised another interesting point. You have mentioned now a couple of times that this matter would be resolved with respect to the impact of this decision by either a court ruling or passage of legislation. It would be helpful for me, at least, if you could explore that a bit further.

Is it your position that, in fact, legislative amendments that address the very specific issues that were raised by Madam Justice McGillis take care of the problem in the context of this case?

MR. CHRISTIE: Take what, I am sorry?

MEMBER DEVINS: Takes care of the reasonable apprehension of bias in this case, if the security of tenure and the remuneration issue -- you have mentioned that a few times, and it would be helpful to me if you would explore that.

MR. CHRISTIE: You have probably pointed me in the direction of the real question which is: What effect would legislation have?

In my submission, it would have no effect on this Tribunal. Unless Madam Justice McGillis' judgment is overturned on the merits, on the method of appointment and tenure and financial security of the officers in question, the reasonable apprehension remains for yourselves because you are appointed under this process and you are paid under this process. If the process changes, you have not changed. You got there and you were maintained there by the process in which there was a reasonable apprehension of bias.

A whole new panel would have to be established. The legislation could change that, but I don't think, with respect, it can retroactively remove a reasonable apprehension of bias. That would not stand the test of 11(d).

It is not as if the courts have not warned the legislature once in MacBain. It is not as if bandaid solutions were not attempted and failed, and legislation failed to get passed. It happened over and again, and the Tribunal and the Commission, I am sure, are well aware that these requests were at the instance of the Commission. I would point out that, if Mr. Pentney is correctly quoted when he said in the Ottawa Citizen that the umbilical cord would be cut, it is a very apt analogy. When an umbilical cord is cut, the child or the creature of the parent is still very dependent on the parent, and I don't know whether that solves all the problems.

What the legislation can do is affect future tribunals. It cannot legitimize the tribunals to which a reasonable apprehension of bias is attached, so it would not assist. The only thing it would assist is reconvene properly these proceedings if there was a Court of Appeal judgment that said that Madam Justice McGillis was wrong or, as my friends contend, there has been a waiver in this case, which would only affect us. It probably would not affect the Mills case, although they even argued that there has been waiver there. I don't know why. It appears that is a question. Have the parties waived is one of the questions. I assume that is because they did not object even sooner. Nobody can ever object soon enough for the Commission.

In my submission, unless courts make those rulings, there is no way to just carry on with the usual. There is no personal animosity in any of this, but I do maintain that there has been quite a clear expression of desire to proceed when wisdom would counsel otherwise.

It may be that for the best of motives you have feelings on these matters that would push on, but wisdom would demand that we defer to courts. In the interest of a fair view of these proceedings as well as any others, there is no harm, no harm at all, If it was necessary to punish Mr. Zundel for what the Intervenants thought he has or has not done or the Commission thought, the punishment is in being compelled to be here.

It is not a minor matter, and it costs a great deal of money and time and effort. The matter would stand in abeyance until a court has ruled contrary to its already existing ruling. Until it does, in my submission, it should be respected.

Thank you.

THE CHAIRPERSON: Mr. Freiman, please.

MR. FREIMAN: So as not to cause disruption during the argument, I have asked my colleagues to circulate a few cases that might be of assistance to you which I will refer to during the course of my submissions. I would have liked to have prepared a book of authorities, but I can tell you that, until I heard Mr. Christie's argument, I really did not know what I would have to respond to and with what authority. I am still not certain that I know the answer to either of those questions, but I am going to give it a try.

ARGUMENT ON BEHALF OF THE CANADIAN

HUMAN RIGHTS COMMISSION

MR. FREIMAN: Let me start by saying that the pile of cases is much less imposing than it looks. Some of these you may wish to look at at your leisure, but I will not detain you for more than a minute in my submissions. There is a line here or a line there.

Let me clarify that I am proceeding from the perspective that, having reserved on the question of the adjournment, I am addressing these matters on the understanding that there will be no adjournment and that matters will proceed. That is my assumption in making the submissions as to what the effect of Bell is on your proceedings today. Indeed, that is the proper way of proceeding because the Commission's position on an adjournment was purely for administrative convenience so as to avoid an overly complex situation among the courts.

In my submission, the questions before you are really relatively simple. The first is: Is there anything in Bell that requires you to down tools, quash, stay, adjourn or whatever the proceedings.

The second is: Assuming that there is nothing that requires you to quash, stay or adjourn, should you nevertheless down tools, not proceed?

I am going to submit to you that the answer to both questions is a resounding "no." There is nothing in Bell that requires this Tribunal to do or to refrain from doing anything. Insofar as there are arguments within Bell that might be useful on a separate motion dealing with the question of structural bias in this Tribunal, I will be submitting first that such a motion is untimely in these proceedings now. Just to anticipate my argument, the only timely motion, the only motion that properly can stop the Commission's case in midstream, bring it to a screaming halt and have us appear here, ask Professor Schweitzer to stay in New York, tell our other witness to stay in Ottawa, is an allegation by Mr. Christie that something that happened 14 days ago deprived you of jurisdiction to continue, that you are no longer entitled to continue.

If such an event did occur, then obviously it must be brought to your attention, and you must take appropriate action.

On the other hand, if what Mr. Christie is saying is that, as a result of a decision that came down 14 days ago, he has now had an idea that maybe there is another reason why he can object to the Tribunal proceeding, and he calls it a jurisdictional argument, a natural justice argument, a bias argument, this is not the time to do it. The time to have done it was at the beginning of the proceedings, both in terms of the law of waiver which we will talk about and in terms of the Tribunal's ability to be master of its own procedure.

Even if you did not accept my submission that waiver applies, it would be inappropriate to bring these proceedings to a screeching halt in the middle in order to allow discussion of a matter that should have been discussed earlier or, at the very least, should be part of the Respondent's case at the end of the day after he has led whatever evidence he wants to lead.

I will go beyond that and say that, in any event, even if you do agree to hear such a motion, the answer is that the Bell decision does not impel you, either on the law or as a question of public policy, to stop.

Let me do this bit by bit and go through each of my submissions in order.

The first is really the most simple and may be the only one that you need to hear. That is that there is nothing in Bell that requires you to stop. The basis for that is as simple as looking at the order itself. The order is not addressed to this Tribunal or to the parties at this Tribunal. It is not addressed to the world at large. The order reads:

"The application for judicial review is allowed in File 1257-97. The proceedings before the Human Rights Tribunal are quashed. There shall be no further proceedings in this matter until --"

And then there is a recitation of the conditions precedent for proceeding.

Just on the simplest level of all, a decision speaks to the parties. The parties are the parties before the Bell Tribunal and, as a matter of law, they are the only ones who are affected directly by the order. We will deal in a minute with the reasoning and with the statements of law and concepts of deference. As a simple proposition, this does not apply to anyone other than the parties to the Bell Tribunal.

Mr. Christie and I are in agreement that this is not a case under the Bill of Rights. Mr. Christie thinks this is a great benefit to his case. In my respectful submission, this in fact makes his case even less tenable.

Had this been a case under the Bill of Rights, it might have been the case that, as part of the relief granted, Madam Justice McGillis might have declared certain sections of the Canadian Bill of Rights inoperative. It is a fact that, even had she done that, they would have been inoperative only as against the parties to that proceeding.

But we are not even at that point. There has been no declaration of any sort dealing with the status of the Canadian Human Rights Act. There have been observations by Madam Justice McGillis, but the upshot of those observations has not been a declaration of inoperability under the Bill of Rights, I was surprised to hear that there is an allegation that this has something to do with the Charter. The facts could not be more different. This decision has nothing to do with the Charter, nor could it have anything to do with the Charter. We start by noticing that the order does not include a declaration of invalidity. If it were under the Charter, it would have been within the jurisdiction of the trial judge to declare that certain sections of the Canadian Human Rights Act are inoperative to the extent of their inconsistency with whatever sections had been alleged.

You will note in the Reasons for Decision that there is not a peep, not a word, suggesting that anyone asked for such an order or that anyone claimed that there had been a violation under section 11(d) of the Charter or otherwise. There is a very good reason for that. It is clear that the Charter does not apply to proceedings such as those before the Canadian Human Rights Tribunal.

If there is any necessity for proof of that principle, two leading cases in the Supreme Court of Canada stand for that, and you have them before you. One is Pearlman and the other is Wigglesworth. They are not complex in their reasoning, and they make the case with clarity.

The case of Pearlman is a decision of the Supreme Court of Canada in 1991 where it was attempted to assert rights to trial within a reasonable time under section 11(b) as part of disciplinary proceedings held by the Law Society of Manitoba. That is the second case. Let us look at the Wigglesworth case first. That was the first time the Court dealt with it, and it was in 1987.

Here we had a police officer charged with a disciplinary offence, who sought the benefit of both section 7 and section 11(h) of the Charter. With regard to section 7, there is no issue in this case. With regard to section 11, which is alleged by Mr. Christie to apply here, the Supreme Court of Canada at page 247 was absolutely definitive.

After reviewing the various arguments that had been raised as to the meaning of the word "offence" in section 11 of the Charter, because all of the rights in section 11 apply only to someone who has, in the words of the document, been charged with an offence, it says that any person charged with an offence has the right to a number of things, including under 11(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent, impartial tribunal. That is the section that is alleged to apply.

There was argument whether section 11, because it refers to an offence, extended to anything that could be categorized as a violation of some requirement. The Supreme Court of Canada is not ambiguous. Madam Justice Wilson says near the bottom of page 147 in the second-last paragraph:

"It is my view that the narrower interpretation of s.11 favoured by the majority of the authorities referred to above is in fact the proper interpretation of the section. The rights guaranteed by s. 11 of the Charter are available to persons prosecuted by the state for public offences involving punitive sanctions, i.e., criminal, quasi-criminal, and regulatory offences, either federally or provincially enacted."

Then she goes on to explain that that means offences with true penal consequences.

Mr. Justice Iacobucci in Pearlman at page 197 --

THE CHAIRPERSON: Before you leave Wilson, where are you quoting?

MR. FREIMAN: I was looking at page 247, the second-last paragraph.

THE CHAIRPERSON: Thank you.

MR. FREIMAN: Mr. Justice Iacobucci, in the Pearlman case reinforces that at page 197 of the decision wherein he says:

"I find persuasive and agree with the reasoning of the majority in the Court of Appeal below, where two decisions of this court were cited (R. v. Wigglesworth and R. v. Kalanj) in support of the conclusion that s. 11(b) does not apply to the facts of the instant appeal, which, as already noted, involve disciplinary matters of a regulatory nature designed to maintain professional integrity, discipline and standards, and do not have true penal consequences."

Certainly, in the proceedings before you with regard to a section that has no penal consequences whatsoever, the remedy is restricted to a cease and desist order. Section 11 could not apply, does not apply and, more to the point, Madam Justice McGillis does not purport to apply it.

If we need support for that, let's look at page 46 of the Bell case and see exactly what is said about the Charter and what is being done with the Charter. The Chief Justice at page 46, paragraph 103, is referring to the Reasons of Mr. Justice Lamer which he cites with approval --

THE CHAIRPERSON: I am sorry, where are you?

MR. FREIMAN: We are looking at Madam Justice McGillis' decision, the impugned decision, the one said to prohibit you from proceeding. It is attached to the order. There is an order, and then there is Reasons for Order directly behind it.

If you look at paragraph 103 at page 46, you will see that everything leads to the conclusion that, in fact, the Charter is not in play in this case. Madam Justice McGillis says:

"At the outset of his reasons, Lamer C.J. confirmed that the principles enunciated by the Court in relation to judicial independence in the context of a s. 11(d) Charter challenge were equally applicable to allegations of a reasonable apprehension of bias concerning the independence and impartiality of administrative tribunals."

In other words, Mr. Justice Lamer is saying that, notwithstanding that they are not subject to the Charter or to section 11(d), those same principles apply when assessing whether an administrative tribunal has, in fact, had a sufficient guarantee of independence.

THE CHAIRPERSON: Although not directly impacted by the Charter.

MR. FREIMAN: That is right. What Mr. Justice Lamer has done in this case is to say that, notwithstanding the fact that the Charter does not apply, the principles that underlie section 11(d) of the Charter are equally resonant as a matter of administrative law with regard to administrative tribunals, and then he went on to separate them by their functions.

I really don't need to go any farther than that. We might as well read the cite, because it confirms that an administrative tribunal has nothing to do with someone charged with an offence.

"As a preliminary comment, I would note that s. 11(d) of the Canadian Charter of Rights and Freedoms guarantees everyone charged with an offence a hearing before an independent and impartial tribunal. Of course, this case does not involve someone 'charged with an offence', so s. 11(d) does not apply directly. However, in interpreting s. 11(d), this Court has developed important principles on the correct approach which should be taken to issues of bias, and particularly the issues of independence and impartiality."

It is clear. The Charter does not apply. These are now administrative law principles. The difference, of course, is that, if it was a Charter challenge, you would invalidate the legislation, declare it to be of no force and effect. If it is not a Charter challenge, the remedies that you have are limited to a remedy specific to the facts of the case and with regard to the case.

Just as a matter of interest, you will note that MacBain and Sethi, the case that Mr. Kurz mentioned, far from being a dead letter as Mr. Christie alleged, are in fact live and good authority. At page 47, paragraph 106, we have an extensive quote that still cites MacBain and Sethi as being sources of good law, but I don't insist on that at the moment.

What we have is not a decision that declares anything, not a decision that makes any judgment, to the world or even to the parties, about the operability of the section. We have a judgment that tells the parties before the Bell tribunal, "This proceeding is void and cannot continue."

In fact, if we are looking at the status of the Bell decision, I said in my brief comments on the adjournment issue that, in fact, Madam Justice McGillis' reasons are arguably obiter in any event entirely, because she is dealing with what is in fact a moot issue. To understand the force of that submission, I would ask you to look at the last page of the judgment.

After reciting the matters with regard to judicial review in File T-1257-97, which is the judicial review alleging reasonable apprehension of bias, her ladyship goes on to say:

"In view of my decision in file T-1257-97, the applications for judicial review in files T-2722-96 and T-950-97 are dismissed on the basis that they are moot."

In other words, because Madam Justice McGillis has in her mind rendered this tribunal void, it is not necessary for her to proceed to consider whether there were other grounds for judicial review relating to the activities of the tribunal. The nature of the proceedings are outlined at the beginning of Madam Justice McGillis' decision, where it appears that there was a separate judicial review for a refusal to adjourn the inquiry, in much the same way as was asked of you, and there was a separate judicial review with regard to challenging the refusal to recuse one of the members on the basis of actual bias. So there were three matters dealing with the tribunal: the systemic bias, a refusal to adjourn and a refusal of one member to recuse herself.

Madam Justice McGillis found: I have already decided that there is no tribunal. The rest is moot, and I am not going to decide it.

That is of some importance because those were not the only applications for judicial review before the Federal Court with regard to the Bell proceedings. We already saw on the first day that we convened back in May, when the leading case that Mr. Binnie cited to you on the issue of whether to stay the proceedings or to proceed was, in fact, the judgment of Mr. Justice Richard in an interlocutory motion in the very Bell case that was requesting that the tribunal adjourn its proceedings or have its proceedings stayed pending the disposition of the appeal.

The proceedings there, as Madam Justice McGillis herself points out, are proceedings with regard to the appointment of the tribunal in the first place as a result of the Commission's decision, much as the Respondent here has launched his judicial review of the decision of the Commission to hold a tribunal.

You will see on page 3 of the Reasons for Order that Madam Justice McGillis recites at paragraph 5:

"On June 14, 1996, Bell Canada instituted judicial review proceedings in File T-1414-96 challenging the decision of the Commission to request the appointment of a Tribunal to inquire into the complaints."

Farther on, at paragraph 8 she says:

"On September 6, 1996, Bell filed a judicial review application, in File T-1985-96, challenging the decision of the President of the Tribunal Panel to appoint a Tribunal to inquire into the complaints."

So there are two other judicial review applications out there.

What is the fate of these two judicial review applications with regard to the decision to appoint the Tribunal? On March 17, 1998, five days before the Bell decision by Madam Justice McGillis was released, Mr. Justice Muldoon of the Federal Court Trial Division released his own decision with regard to the judicial review application of the decision of the Commission to refer the matter to the Tribunal. I have put that before you by way of Reasons for Order.

If you turn to the last page -- first, you will notice that it is T-1414-96, which is what Madam Justice McGillis is referring to. At paragraph 45, there is a decision which I cite not in approbation of the reasoning but in recognition of the fact of the judgement:

"The Canadian Human Rights Commission has received and approved of improperly formulated complaints against Bell, (which Bell has pointed out were improperly formulated) in defiance of section 11 of the Act, and the Commission has acted unfairly to Bell by causing a tribunal to be appointed for the purpose of adjudicating such time barred, improper complaints. That is a decision which the Commission made in defiance of the statute and of fairness: it ought not to have been made. It will be quashed."

In other words, five days before Madam Justice McGillis' decision, Mr. Justice Muldoon had already quashed the Tribunal that was the subject matter of Madam Justice McGillis' order.

If at some future date there is an appeal of Mr. Justice Muldoon's decision and it is upheld by the Federal Court of Appeal, then I suppose Madam Justice McGillis' order will spring up again and will be the controlling decision, but at the moment it is not even the controlling decision for the fate of the Bell tribunal.

In those circumstances, it is my respectful submission that there is no compulsion whatsoever for this Tribunal to do anything as a direct result of the order. It does not remove jurisdiction from this Tribunal. You can look up and you can look down, but you will find nothing in Madam Justice McGillis' order that says: Every tribunal is hereby stayed, quashed, made void, told not to proceed. It is not addressed. One tribunal is told not to proceed on the basis of certain reasoning.

This may be as far as I need to go in order to say: Now that you are masters of your own procedure, you are not compelled to do anything. Let's proceed. Call Professor Schweitzer. I will go farther, though.

As I said, it was appropriate to bring a motion alleging a loss of jurisdiction, and I think that is all Mr. Christie did today. I did not hear him say anything beyond that. He simply alleged that the reasoning in the Bell case somehow led to a loss of jurisdiction on your part.

In fact, in order to rely on Bell, on the reasoning rather than on the order, it would be necessary for the Respondent to bring a new motion asking this Tribunal to stay its proceedings, adjourn them or quash them on the grounds of reasonable apprehension of bias, on the basis of the reasoning rather than the order of Madam Justice McGillis.

I have said in the introduction to my remarks that, in my respectful submission, this is not the time for that. The Tribunal being master of its own procedure ought not to entertain such a motion. If it was to have been brought, it should have been brought at the outset. Everyone is presumed to know the law, and I say that not in terms of what Madam Justice McGillis said, but in terms of the facts which would underlie any such complaint, namely, the provisions of the Canadian Human Rights Act, what is in it and what is not in it. If there was to be an allegation about a defect in natural justice or a structural bias on the part of this Tribunal, it should have been made at the outset.

THE CHAIRPERSON: You are saying the Respondent has waived because he did not anticipate the articulation of the principles in the Bell case?

MR. FREIMAN: No, not yet. I am going to say that soon. At the moment, what I am saying is that the time for bringing such objections has passed; that you bring your objections to jurisdiction on the basis of bias -- actual, apprehended, inferred or whatever

-- as a preliminary objection. You do not bring it in the middle of proceedings because some other case has come up with a new idea.

At the most -- and I am only talking about it now as a procedural matter; I am not talking in terms of the law of waiver with regard to a denial of natural justice. I will get to that in a minute. I am just talking as a matter of procedure. To say it is inconvenient is an understatement. It is simply wrong to stop the proceedings in the middle of the Commission's case in order to allow the Respondent to make this argument.

If it is proper at all, if the Tribunal believes in any way that it should be heard, then at the very best it should be heard in the Respondent's case. The Respondent should lead whatever evidence of these elusive guidelines that the Respondent is now complaining about, which, as I understand it, are guidelines for the interpretation of pay equity and, as I understand it, are by statute -- I think it is section 27(4) of the Human Rights Act -- and are required to be published in the Canada Gazette, so there is no secret law here. If he has evidence, let him lead it as part of his case. If he wants to argue that this results in a defect in natural justice or a defect in jurisdiction, structural, apprehended, actual or whatever bias he wants to call it, he can do that in his final argument, if the Tribunal is pleased to hear him and decides that it is proper to hear him. Just as a matter of procedure, it should not be heard now.

Then I go to the next point. Should you hear it at all? I say that the answer is "no."

MEMBER DEVINS: Mr. Freiman, before you move on, I would like to explore a bit further this notion about our being the masters of our own proceedings and, therefore, not entertaining this objection now, that it ought to have been raised earlier.

What troubles me about that is that, as masters of our own proceedings, we also have an obligation to ensure the integrity of these proceedings and to ensure the appearance of fairness. What do we do when in the course of a hearing you have a court decision which says that, by virtue of its statutory scheme, there is an appearance of a lack of independence? What are the parties to make of that?

If they cannot in fact raise it at the time the decision comes down, does that not erode the confidence in this system?

MR. FREIMAN: If it were a decision that was binding in a direct way, that impelled the Tribunal to do something or not to do something, you would have to act immediately. If it is not and if it is otherwise proper, then it should not be an interruption in the case, especially when it is almost finished.

If the Tribunal believes that it should be heard, it should be heard as part of the Respondent's case. There is no great prejudice in waiting the week at most between the next Hearing date on which the Commission intends to call evidence and the time for opening of the Respondent's case.

MEMBER DEVINS: Is the prejudice simply not continuing in a case in which there is at least asserted an apprehension of bias? I understand the technical arguments about lack of jurisdiction, et cetera. What I am thinking about is the person on the street who says, "There is a court decision that says that this Tribunal, because of its statutory structure, is without sufficient independence and that creates a reasonable apprehension of bias."

I then think about the parties in all the other cases and all the other tribunals who are proceeding who say, "Gee, I have the same system."

I hear you suggesting that they should have raised it at the beginning because it was the same legal basis, and that is a very technical argument. What I am concerned about is really the policy implications and preserving a confidence in the system.

MR. FREIMAN: The reason I brought it up at all in terms of master of your own procedure is in order to articulate what I submit is the proper time to hear such a matter. I am going to go on and submit to you that there is no reason to entertain the motion at all.

In terms of the public confidence in the system, that depends on the integrity of the reasoning of this Tribunal in explaining itself and in explaining that these matters will be dealt with in the courts on a matter that undoubtedly encompasses a wider ambit than the decision of Madam Justice McGillis, a matter that is intended to apply to everyone. Until that happens, you do not shut down the entire system because of the opinion of one, admittedly distinguished and able, judge, but one judge, dealing with one set of facts, one set of parties, with, as been stated by the Panel Member herself, no opportunity for those involved in other proceedings to make their pitch and to explain why this is not accurate, why it is not a proper statement of the law.

If it were proper to stop the proceedings every time somebody had a new argument, we would never get anywhere. There has to be some sense of whose argument is which and getting on with it. You can't start and stop all the way down the road.

You have my submission on that. My more central submission, the one that in my respectful submission goes directly to the issue of whether you should do it in any event, whether now or later, is that on the law as it has been articulated there has been a waiver. Waiver still is good law. Notwithstanding the strenuous efforts you heard this afternoon to turn Newfoundland Telephone into something that it is not, the very case that Mr. Christie cites after Newfoundland Telephone in purported support of his proposition, in fact, demonstrates that the opposite is true and that the law of waiver is intact and is still being applied.

I have not had the benefit of reading this particular decision before it was circulated by Mr. Christie, and I note that the copy that I have ends just as the dissenting opinion gets going. We know from the text that the dissenting opinion also makes mention of the issue of waiver, and in this connection the majority agrees with them. I am sure that this can be remedied and that the Tribunal has access to Quic Law or to a library as much as we do.

I just note what happens in the portion we were given the privilege of seeing. At paragraph 11 the Supreme Court of Canada in the majority opinion says:

"Our colleagues contend that allegations of bias should be made in a timely fashion and cite American cases for this proposition."

Here is the response:

"We accept that in order to maintain the integrity of the court's authority such allegations must, as a general rule, be brought forward as soon as it is reasonably possible to do so."

And they find on the facts of this case that five days after the problem is as quickly as it is reasonable to do so.

In the circumstances of this case, there has been a waiver. There is nothing on the record that addresses any objection by the Respondent to the Tribunal in terms of structural bias, in terms of problems with the Act; in fact, there is nothing that even goes to actual bias. There are reams of argument about bias. They refer to the bias of the Commission, as alleged, and, interestingly and somewhat puzzlingly, to the bias of several of the Intervenors as though taking a position on the matter in issue were a disqualifying feature for participation. I would have thought that was the basis for participation.

There is nothing in the record, and Mr. Christie did not rise to the challenge put to him by the Panel to demonstrate anything in the record that deals with an allegation of bias, certainly of apprehended bias, certainly of structural bias, against the Tribunal.

The principle of law is not a harsh one. What it says is that, if you proceed into a hearing, make your submissions, cross-examine witnesses, and go down the road for 14 days, you cannot on the 15th day say, "Ah, I now have an argument. I see it somewhere else. Stop now. I am prejudiced." You have to raise it at the outset.

That is exactly what has been said in the AECL case. But, more to the point, quite aside from the Curragh case which demonstrates that AECL is still good law, even without that case, it would not be an appeal from the Supreme Court of Canada in Newfoundland Telephone to the Federal Court of Appeal. In a case that Mr. Christie should have some passing familiarity with, the Supreme Court of Canada in fact approbated the AECL test, and that is the John Ross Taylor and Western Guard Party v. Canadian Human Rights Commission and Attorney General for Canada.

If you turn to page D/484, paragraph 173, Mr. Justice Dickson wrote the majority opinion and he simply said that he approved of the reasoning in MacBain in terms of delay. Madam Justice McLachlin writes the dissent and would otherwise have struck down section 13(1) of the Canadian Human Rights Act, the section under which we are assembled in these proceedings. She nevertheless deals with the issue of waiver as well. At paragraph 173 she says:

"I would adopt the reasons of MacGuigan J. in Re Human Rights Tribunal and Atomic Energy of Canada Ltd., supra. There, as here, the applicant failed to raise the allegation of bias at the commencement of the proceedings. MacGuigan J., distinguishing MacBain, held...that the principle in MacBain was limited to situations where the applicants raise allegations of bias at the outset of the proceedings.

She goes on to cite what is, in my submission, still the law:

"...AECL's whole course of conduct before the Tribunal constituted an implied waiver --"

She is not now dealing with an expressed waiver, but an implied waiver, as Mr. Justice MacGuigan describes it.

"-- of any assertion of a reasonable apprehension of bias on the part of the Tribunal. The only reasonable course of conduct for a party reasonably apprehensive of bias would be to allege a violation of natural justice at the earliest practicable opportunity. Here, AECL called witnesses, cross-examined the witnesses called by the Commission, made many submissions to the Tribunal, and took proceedings before both the Trial Division and this Court, all without challenge to the independence of the Commission. In short, it...impliedly...waived its right to object."

THE CHAIRPERSON: Are the facts underpinning the allegations of bias peculiar to this particular transaction?

MR. FREIMAN: No. In MacBain the allegation was an allegation of structural bias, and AECL tried to take advantage of it. In fact, MacBain and AECL are paradigmatic of what is being attempted today. MacBain held that the Canadian Human Rights Act was deficient in its provisions because it mandated an appointment by the Commission of the Tribunal. A declaration in that case was issued under the Bill of Rights. I note that MacBain was after the passage of the Charter. If the Charter had been applicable, no doubt the Charter would have been cited. Even back in 1985 they knew the Charter would not apply.

AECL, it would appear from Mr. Justice MacGuigan's Reasons which I will take you to in a minute, was in the middle of its Tribunal proceedings and moved before the Federal Court of Appeal, as it then was, because it was section 28 rather than section 18 that governed, and asked: Does the Tribunal appointed with regard to us have jurisdiction to continue -- note: to continue -- in light of the fact that it is struck under the same statute and the same régime as was held to be inoperative in MacBain?

So the decision is on all fours. It was not personal bias; it was not real or apprehended bias on the part of a member for something he or she did. It was because the statute was deficient.

It was in those circumstances that the Court of Appeal in that case held that, by not objecting at the outset, AECL had lost the opportunity to do so. Subsequently, in Taylor, both Mr. Justice Dickson writing for the majority and Madam Justice McLachlin writing for the dissent said, "We approve of that particular decision."

You will find all that in the AECL decision which I have provided to you separately. I just want to take you to page 682 of the reported decision in the DLRs. I want to take you first to the question that was asked, which you note in the middle of the page:

"Does this Human Rights Tribunal, having been constituted in the same manner, by the same process, and pursuant to the same statutory scheme as that described in the case of MacBain v. The Canadian Human Rights Commission et al., have jurisdiction to continue its inquiry?"

It was exactly as it is in our case. The inquiry had begun. MacBain came down. AECL said, "That lets us off the hook."

The Court of Appeal says, "No, you have waived," in the passage that Madam Justice McLachlin cites. I just draw your attention to what constitutes a waiver. In this case they found expressed and implied, but we will read the passage beginning with "Unlike --":

"Unlike the appellant/applicant in the MacBain case, who commenced proceedings alleging bias even before the first hearing of the tribunal on the complaint against him and in fact withdrew from the hearing, AECL, in the view I take of the facts, both expressly and impliedly waived its right to challenge the jurisdiction of the tribunal here."

Here is the important point:

"AECL was in possession of all the pertinent facts which formed the basis of this Court's decision in the MacBain case before the first public hearing in this matter in December, 1984."

Those facts were simply what the statute provided for. Knowing that, counsel was in possession of the underlying facts.

Does the decision in Newfoundland Telephone change any of that? Mr. Christie told you that that judgment, because it uses the magic word "void," changes everything and that henceforth there shall be no waiver of any bias, whether it is real bias or apprehended bias, whether it is actual bias or it is structural bias. We are told that this case changes the world.

My first observation is that one would have expected that, if the Supreme Court of Canada was in one paragraph out to change the law as it had been articulated in numerous cases, including, as we have seen, the case of Taylor in the Supreme Court of Canada, it would have drawn attention to the fact that up to now there has been the ability to waive, but from now on there is no such ability.

Before I forget -- and I am not going to take you to it. If, perchance, you should reserve and you wish to consult another case, the Supreme Court of Canada had previously in the Horelkin v. University of Saskatchewan case said explicitly the same, that even questions of natural justice, despite the fact that they are jurisdictional, can be waived and do not necessarily void all proceedings so that they are nullities.

Let us look now at what is said in the Newfoundland Telephone case. Madam Justice McGillis does indeed cite this very passage. I have the reported case in the DLRs but, if you are using the copy that was circulated by Mr. Christie, it will be on the last page under "The Consequences of a Finding of Bias." As I say, Madam Justice McGillis cites this very passage in her Reasons:

And here is the important point.

"-- by the tribunal's subsequent decision. A decision of a tribunal which denied the parties a fair hearing cannot be simply voidable and rendered valid as a result of the subsequent decision of the tribunal. Procedural fairness is an essential aspect of any hearing before a tribunal. The damage created by apprehension of bias cannot be remedied. The hearing, and any subsequent order resulting from it, is void."

You will see what the difficulty was -- and, in fact, this was the Horelkin difficulty, and this may in fact overrule Horelkin. There had been an assertion in this case that, regardless of the fact of potential reasonable apprehension of bias, the decision of the tribunal itself rendered that apprehension irrelevant. It had been cured or corrected by the subsequent decision, sort of like in the Criminal Code, the sections providing that, if there is no consequence to an error of law, there is no remedy for the error of law. I think it is section 613 and its various subsections.

The Court is saying here that you cannot do that. You cannot subsequently justify a prior holding or a prior act that denied natural justice.

There is a very strong argument, as formulated briefly for you by Mr. Kurz, that in any event what is being dealt with here, although it is called a reasonable apprehension of bias, refers to the consequences of some act by a member of the tribunal. Whether that act reveals true bias or not, it would persuade a reasonable member of the community that there might be bias.

That is the circumstance that is being dealt with here. That circumstance is to be contrasted with the circumstance where you are talking about a structural bias, where it is not because of anything that someone has done but, rather, because of the way the Act itself is structured, such that, even if it were correct that Newfoundland Telephone says that these are errors that render a decision a nullity, it would not necessarily extend to structural difficulties. As I say, there is a strong argument to be made and considered.

I also say that you don't have to go that far. It is clear, especially in light of Curragh, that what is being said is that you cannot fix it subsequently, not that you cannot waive it. I base that, in fact, on what Mr. Christie had said earlier about how the decision that he is talking about is utterly void, null and void. In fact, that is what you would have to find and that is what a court would have to find, that the entire proceedings were a nullity for a lack of jurisdiction in the first place before it were possible to hold what he says, namely, that it is impossible to waive.

I have to go back in order to demonstrate that, I believe, to the sections of AECL that Mr. Christie cited to you. I am looking now at page 683. At the bottom of the page it says:

"Counsel for AECL did not dispute this view of the law but argued that the bias here --"

The view of the law was the issue of waiver.

"-- was so fundamental as to create a total lack of jurisdiction. Halsbury, para. 72, p. 88, adds to the former statement that 'if the decision were absolutely null and void in relation to the person aggrieved, he would not be precluded from impugning it because of waiver or acquiescence'."

That is the law as I understand it and as I urge it upon you. In order to be protected from waiver or acquiescence, the decision must be absolutely null and void, as being totally without jurisdiction.

Here we get into, unfortunately, the difficulties of the language in which administrative law is couched. Just as the issue of void and voidable has caused numerous difficulties, so has the question of what is jurisdiction; when do you have jurisdiction and when do you not have jurisdiction.

On the issue of void and voidable, just as a preface, it is my submission that it is trite to say that a decision may be voidable but, when a tribunal decides to exercise its power to declare it void, it becomes void, and so it moves from voidable to void. The fact that Madam Justice McGillis says "these proceedings are void" is not necessarily an indication of anything, other than that she has now declared them void. From the moment that they are declared void, as in the Curragh case, retroactively they become void from the very first day that the proceedings were entered into. But they do not become void, as the President of the Tribunal noted, until somebody declares them void. That is what is meant by "voidable." They require an articulation of that fact.

That is one way of using void and voidable. Clearly, in the Newfoundland Telephone case there was also the issue of void and voidable as reparable or irreparable, that some things are irreparable and other things are not irreparable on a going-forward basis.

If Halsbury is correct, and in my submission it is, that in order to be immune from the law of waiver it has to be null and void, as without jurisdiction, then it is clear that this decision is not.

I despaired somewhat of explaining the administrative law rules, so instead I photocopied a text, "Principles of Administrative Law, Second Edition." by the learned authors, Jones and de Villars. At page 366 of that text they discuss the question of whether it is possible to waive, in this case, the rule of nemo judex -- that is, that no one may be a judge in his own case, one of the two fundamental rules of natural justice, one being nemo judex and the other being audi alteram partem. That is the entire law of natural justice. In fact, the right to an independent tribunal is part of the nemo judex rule.

Here is what the learned authors say:

"Although parties cannot generally extend a delegate's statutory powers by agreement, it is submitted that there is no objection to their waiving the nemo judex rule to prevent disqualification of a decision-maker whom they find to be acceptable. After all, a breach of natural justice does not prevent the delegate from obtaining jurisdiction in the narrow sense used by Lord Reid in Anisminic, but it is an error which causes him to lose jurisdiction in the course of his proceedings. If both parties specifically agree to a particular way of conducting that hearing, this does not amount to conferring jurisdiction where none ever existed; rather, it merely prevents the delegate from losing jurisdiction, which might otherwise occur in the absence of that agreement."

I want to stop there because that also explains why this matter has to be raised right at the outset.

The Tribunal has jurisdiction in the narrow sense, in that it has jurisdiction over the person of the Respondent and it has jurisdiction over the subject matter of the Respondent. So it cannot be asserted that the Tribunal never had any jurisdiction. It had the necessary jurisdiction in personam and it had the necessary jurisdiction in rem at all times.

It can lose its jurisdiction by a failure of natural justice, by a jurisdictional error. One of those is for a person who is not seen to be impartial to preside. Once that is allowed to happen, there has been an error, a loss of jurisdiction, and the proceeding can be declared void at the suit of one of the parties.

However, if before the proceedings start there is no objection taken, we know from Taylor and we know from AECL that there is an implied waiver, which is the same as an agreement between the parties. It is assumed that the parties are content with the adjudicator, and a loss of jurisdiction which would otherwise have occurred now does not occur, and the matter can proceed forward.

In my respectful submission, that is precisely what happens in this case. That is precisely why, notwithstanding Newfoundland Telephone which does not interfere in the least, if there has not been a timely objection, as Madam Justice McLachlin says, at the very outset of the hearing, then the parties are impliedly deemed to have waived their ability to cite an error of law leading to a loss of jurisdiction.

That, in my respectful submission, is the law with regard to waiver. It has not changed. If it had changed, you would expect the Supreme Court of Canada to know about it when it comes to Curragh and to say, "Once upon a time this was the law, but now it isn't." Instead the judges say, "We agree that you have to make your objection in a timely manner."

In that case it was an actual fact; it was an action by the presiding judge that led to the loss of jurisdiction. The only question was whether five days was too long to raise it for the first time, and the majority said, "No, five days is fine." In that case, if we follow the reasoning, the judge had jurisdiction, was able to conduct the hearing at all times up to the point at which he committed the error, made the telephone call. At that point his participation rendered the proceedings voidable, in that, if no one had said anything, nothing would happen. So long as the objection was raised within a reasonable time, it was voidable, and the proceedings at that time became void from their outset.

If no objection had been raised, the judge would never have lost his jurisdiction because the parties were perfectly aware of the facts and did nothing about it and, therefore, impliedly were said to consent to the continuation of that state of affairs.

I say, in my respectful submission, there is nothing in the Newfoundland Telephone case that compels you to the conclusion that the Respondent was unable to waive his rights. If he was able to waive his rights, you are able to find that he did waive his rights. As I say, that is something that would come on a different motion but, if you consider that to be part of this motion, you can make that finding.

I go one step farther. If we look at the Energy and Chemical Workers case -- that is, the AECL case -- a little farther, then we see that there is another problem with applying Madam Justice McGillis' reasoning, as opposed to the order, to the facts of this case. I take it that, if one does embark on an inquiry as a tribunal and one comes to an issue of law, if there is a statement by the Federal Court on that issue of law and there is no higher court that contradicts that statement, the tribunal is bound. I think that is really the upshot of all of Mr. Christie's argument.

Madam Justice McGillis' decision says, "These structural defects lead to a denial of natural justice." Therefore, you must find the same and you must find that the consequence is to impugn the proceedings and, at least, to cause you to adjourn them or stay them.

The full proposition is that, if the decision of the Federal Court is the highest authority on the subject, it is binding on you. If there is a higher authority that contradicts that statement of law, then obviously the Federal Court statement of law is not binding on you.

THE CHAIRPERSON: Are you suggesting that we can inquire into whether there is reason to believe that the decision was wrong?

MR. FREIMAN: Insofar as it is being cited to you as authority for your taking a step, then you are entitled to inquire whether there are other decisions that might be binding on you to take a different step. I am not suggesting that, if the decision were aimed at you and said, "The Tribunal in the Zundel case shall cease its operations or is hereby void," you could then sit around and ask, "Is this right or wrong?" Clearly not.

If, as I am suggesting, since there is no such order, the only application can be that there is some proposition of law in that case that is binding on you, then you have a right to inquire whether it is in fact binding on you or whether there are other decisions that might call it into question.

Here again it is instructive and important to remember that it is only the proposition of law that is being cited to you. It is not whether Madam Justice McGillis could have said something different to arrive at the same conclusion or could have looked at something else. The something else in question would have been the Bill of Rights.

I go back to the fact acknowledged by Mr. Christie and, in fact, insisted upon by Mr. Christie repeatedly, that the Bill of Rights plays no role in Madam Justice McGillis' decision. I supplement that with the observation I made earlier, that the Canadian Charter of Rights can play no role and, in fact, plays no role in her decision.

That being the case, the proposition of law with which you are faced, on the basis of her decision in Bell is that, where a statute explicitly authorizes a course of proceeding that inevitably will result in a denial of natural justice or a perception of a reasonable apprehension of bias, the correct remedy is to stay the proceedings or to quash the proceedings entirely. In other words, where the statute says, "Conduct yourself in a way that doesn't afford full natural justice," the remedy is to quash the proceedings.

In my respectful submission, the passage read to you, but quickly, by Mr. Christie from AECL demonstrates that that is not a proposition that can be squared with higher authority. Again I want to be absolutely clear. I am not talking about the Charter and I am not talking about the Bill of Rights, neither of which forms a portion of Madam Justice McGillis' decision. This is at the bottom of page 684:

"First, the law should be looked at apart from the Canadian Bill of Rights --"

Before I do that, I would like to note that at the top of the page Mr. Justice MacGuigan cites from Halsbury issues of consent, waiver and acquiescence. You will note again, as I urged on you, that he says:

"The general rule is that want of jurisdiction cannot be cured by such conduct on the part of the person over whom the purported jurisdiction is exercised, --"

Again, you will recall that "want of jurisdiction" means that you never had it, not that you lost it along the way.

At the bottom of the page, I wish to draw the Tribunal's attention to the discussion on the state of the law, absent the Bill of Rights or, in fact, the Charter. Here is what Mr. Justice MacGuigan says:

"In the first case, without reference to the Bill of Rights, it was established by a divided Supreme Court in Law Society of Upper Canada v. French --"

I have given you a copy of that, although you don't need to refer to it because the germane portions are cited here.

"-- that bias which would otherwise render proceedings contrary to natural justice may be authorized by legislation."

Then he proceeds to describe what happened in that case. He then cites from the judgment of Mr. Justice Spence:

"'A consideration of the provisions of the Law Society Act, 1970, however, moves me to the conclusion that the duplication of members of the tribunal between the Court of first instance and the appellate Court in this particular case has been, at any rate, impliedly accepted by the Legislature.'

However, although the minority of the court took issue with the majority over what might rightly be implied from the statute, it accepted the power of the Legislature to vary the normal application of the rules of natural justice. Laskin C.J.C. acknowledged for the minority:

'Equally unthinkable, in the absence of express authorization, is that Convocation should include members who had already fixed the solicitor with guilt as members of the Discipline Committee. An adjudicator may not properly sit in further proceedings based upon his adjudication any more than can an accuser sit as a member of the tribunal hearing his accusation, unless authorized by statute.'"

Mr. Justice MacGuigan continues:

"This conclusion that procedures prescribed by legislation are by definition free from bias was reinforced by the Supreme Court in Ringrose v. College of Physicians & Surgeons of Alberta --"

And then he goes on to cite the facts there.

The conclusion he comes to at page 686 is:

"In the MacBain case the statutory authority for the Commission to act as it did was express, and, apart from the Bill of Rights (which does not appear to have been argued in either the French or the Ringrose cases) --"

Obviously, the reason for that was that they were provincial statutes to which the Bill of Rights would not apply.

"-- would certainly have precluded any challenge based on reasonable apprehension of bias."

He goes back at the end of his judgment to reflect on all of these findings, the first of which is that, absent a constitutional or quasi-constitutional document capable of negativing the will of the Legislature, a legislative enactment that specifically authorizes a denial of natural justice cannot be interfered with by the court. To put it another way, if the Legislature authorizes it, it is not a denial of natural justice.

I just pause for a moment to refer the Panel to the basis for that sort of conclusion which comes from the supremacy of the legislature. Parliament being supreme, Parliament can legislate in any area other than that which is prohibited to it by some constitutional document, such as the Charter or the Constitution Act, 1867 with its division of powers. The only other exception is a quasi-constitutional document, such as the Canadian Bill of Rights, which is in the anomalous position that the courts have stated that, where it is cited, it is capable of overruling a legislative enactment. Absent either the Charter or the Canadian Bill of Rights, the legislature is supreme, even if it prescribes matters which result in a denial of natural justice.

It may be a bad idea. It may be to the discredit of the legislature, but it is still binding, and no one has the authority to strike it down unless by virtue of a constitutional document.

In my submission, the consequence, therefore, of Madam Justice McGillis specifically not invoking the Bill of Rights, not invoking any constitutional document, is that the ratio of the decision is inconsistent not only with AECL but also with French and also with Ringrose. I push it no higher than to say that that raises doubts as to the correctness of the decision.

In terms of your deliberations as to whether to apply it, you don't have to go any farther than that. Since the case does not directly speak to you and since the facts of this case, with the waiver, differentiated from the facts of that case, and since the reasoning in that case is at least arguably inconsistent with higher authority, it is my respectful submission that not only do you not need to apply Bell to your deliberations, but that you should not apply Bell to your deliberations.

MEMBER DEVINS: Mr. Freiman, would you clarify for me how these decisions, which were prior to the decision in Valente and the Judges Reference, et cetera, really square with that. The whole of institutional independence, in fact, is founded on the statutory scheme.

MR. FREIMAN: But in Valente you are dealing with constitutional issues. You are dealing with judicial independence which the court holds is a part of our constitution by virtue of, I believe, section 99 of the Constitution Act. That entrenches for judges a rule of independence that cannot be breached by statute. Similarly, if we are dealing with penal enforcements, section 11(d) prohibits the legislature from enacting something that is inconsistent with it.

Valente is no problem. It is when you get down to applying Valente as though it were a constitutional document or a constitutional doctrine to tribunals that are not governed by the Charter or in cases where the Bill of Rights is not invoked and therefore not considered that the inconsistency arises.

MEMBER DEVINS: Which Madam Justice McGillis does expressly and says that as a matter of law she is entitled to do that.

MR. FREIMAN: That is right.

MEMBER DEVINS: And there is no authority that I know of or that she cites certainly -- and I would be interested to see if you can cite one to us -- that says that she is wrong on that, in which case she has brought in a constitutional connection, has she not?

MR. FREIMAN: In my respectful submission, it is not open to a judge to bring in a constitutional convention without, at the very least, stating that that is what is going to happen and without citing very persuasive authority. The issue of what constitutes a constitutional convention, as the Tribunal knows, is an incredibly complex matter and has led to some somewhat surprising results such as the Supreme Court of Canada's decision in the CAP challenge that the uniform behaviour of legislatures and relations between provincial and federal legislatures for decades does not constitute a convention.

In my submission, if she were purporting to establish a constitutional convention that entrenched Valente as a general principle of law paramount over the will of the legislature, it would, at the very least, have been incumbent upon her to say that and to justify the decision in some reasoned fashion.

The error, if there is one -- and I appreciate that it is not for this Tribunal to sit in judgment over the correctness of the Federal Court. That is why I say to you that it is only a matter of my citing to you inconsistent decisions of an even higher court which just raise a question as to the applicability of this. I am not suggesting that you have the authority to find her wrong, nor am I asking you to find her wrong. But, if there is an error in the decision, it is in Madam Justice McGillis' too quick movement from an adoption of the principles that underlie judicial independence in the Valente sense, where we are dealing with a court, to an assumption that the same constitutional halo also surrounds the application of that principle where the statute provides otherwise in a different context.

MEMBER DEVINS: That is precisely where my difficulty is in terms of following your argument.

Given that she does that and that we are not free to question that, how can you make the argument that there is higher authority that suggests otherwise?

MR. FREIMAN: There is no discernible way to do that. There is no discernible way to ignore French and Ringrose, other than perhaps to establish a constitutional convention. If you are going to do that, you have to do it.

MEMBER DEVINS: I am sorry...?

MR. FREIMAN: If you are going to do that, you have to do it explicitly. It is not open, in my respectful submission, for this Tribunal to assume that the learned judge has found a constitutional convention, because she does not give any indication of actually trying to do so.

THE CHAIRPERSON: If your argument is that it is not appropriate for us to disagree or confront the decision in some way, your argument does lead to the conclusion that we continue on --

MR. FREIMAN: Continue on and decline to apply.

THE CHAIRPERSON: Is it not implicit in that course of action that we are ignoring the decision?

MR. FREIMAN: I think what is implicit is that, given all the other factors -- this is one factor in the decision. Given the existence of a number of decisions that on their face are difficult to square and given the fact that there is no requirement for you to do anything as a result of the McGillis decision -- it does not directly address you -- you can decline, in my respectful submission, to apply any of the principles and simply proceed.

Not being able to decide conclusively which principle to apply, it is my submission that you can decline to apply any of them and simply proceed until some court tells you that you have made a mistake, that you should not be proceeding. That is precisely what the Cedarvale Tree case, which Mr. Binnie cited to you on the very first day of these proceedings, says. If there is no jurisdictional reason why you cannot proceed, you proceed until a court tells you to stop. That is all I am urging you to do.

Given that there is no directly applicable principle that forces you to do anything in the Bell

case, given that there is a factual difference based on the issue of waiver, given that there is at least reason to doubt whether the judgment is the last word, based on surrounding judgments you simply proceed.

That, in my respectful submission, is what you should do. The reason you should do it is because of the very factors enunciated in Mr. Justice Richard's Bell decision, which I think I have given to you as well, which you heard on the first day of these proceedings. Maybe I should cite it to you. It is succinct and it deals precisely with our case.

It is Bell v. Human Rights Commission as decided by Mr. Justice Richard in January 1997. It is in the book of documents that was distributed on the first day, but I will give Mr. Christie a copy before we go any farther. I may be looking at a different version than you are, so I will just refer to the paragraphs. I am looking at paragraph 33 under "Stay of Proceedings -- the Applicable Test" and following.

Admittedly, Mr. Justice Richard is talking about the test for a stay, for stopping proceedings while something else goes on but, in my submission, that is exactly what is being asked here, that you stay your proceedings, that you stop on the basis of the presumed requirements in the Bell case.

Mr. Justice Richard says that the applicable test is the same as for an interlocutory injunction, namely, an arguable case on the merits, irreparable harm and the balance of convenience. I will not talk about an arguable case on the merits because there, in all probability, is an arguable case. The threshold is low.

Then we ask: Is there any reparable harm? On page 18 of my text -- and this follows immediately after Note 22 -- his lordship says:

"At the second stage, the applicant must convince the court that it will suffer irreparable harm if the relief is not granted. 'Irreparable' refers to the nature of the harm rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other."

Then he goes on to talk about balance of convenience.

I intended to direct you to the actual discussion of irreparable harm which is at paragraph 37. He proceeds to recite:

"Bell Canada claims it will be required to expend considerable effort, undergo a disruption of its business as witnesses are prepared and called to testify, and incur the costs of litigation. All of this is preparation for the Tribunal hearings which will be unnecessary if any of its judicial review applications succeed. According to Bell Canada, it cannot be compensated for any of these matters in the event of success of any of its judicial review applications, not even for the monetary costs incurred during the hearing before the Tribunal, because the Tribunal, being legally non-existent, could not order any compensation for it.

Bell Canada argues that the exposure of a respondent to such costs and disruptions is well recognized in law as constituting irreparable harm...

I do not accept that submission. Mr. Justice Rothstein stated as follows about this matter:"

He is talking about costs and having to appear at the Tribunal not being irreparable harm.

At the bottom of page 21 he says:

"I have not been persuaded that the circumstances are such that I should stay the proceedings. While unnecessary time and costs will have been expended if the proceeding goes ahead and it is ultimately decided that the Board is without jurisdiction, this is more a matter of inconvenience than irreparable harm."

He then goes on to talk about balance of convenience, and he says at paragraph 42:

"In arriving at a decision on the balance of convenience, the court must consider the public interest in having complaints of discrimination dealt with expeditiously."

He cites Toman and Human Rights Commission. Then at the bottom of the page he says:

"I do not believe that this is in the public interest to delay proceedings before the Tribunal. As McKeown J. stated in Federation of Women Teachers' Association v. Ontario Human Rights Commission, the role of the Commission as representing the public interest must be considered when deciding whether to stay its proceedings. As a matter of balance of convenience, taking into account the public interest, and the interest of the complainants, no stay should be granted."

You heard that from Mr. Binnie at the beginning, and you are going to hear that from me now. There is a positive public benefit and public interest to having these matters proceed. There is no correlative interest to holding matters up.

At the most, Madam Justice McGillis' decision demonstrates an intention to impress upon the government the need to pass amendments that will clarify potentially objectionable portions of the Human Rights Act.

Holding this morning's Globe and Mail, which I consider to be an infallible source, as Mr. Christie considers the Ottawa Citizen, according to that newspaper, the proceedings that are being held up in the Bell case are the largest, most extensive proceedings in the history of the Human Rights Commission and involve the largest amount of money in its history. Holding that proceeding up is plenty wake-up call enough to impel the government to act.

It is clear from Madam Justice McGillis' reasons that she does not see an objection such as this making the complaints go away, and Mr. Christie has said as much as well. She recognizes that they are going to come back, and that is why her order even about Bell is that there shall be no further steps in this proceeding until the Act has been amended. It will come back.

This will come back also. There is no public interest in simply stopping now and, if Mr. Christie is right, throwing away all of the time, all of the effort and all of the money that has been put into it, rather than proceeding until a court tells you to stop. In my respectful submission, that is exactly what you should do for all of the reasons that I cited.

Those are my submissions.

THE CHAIRPERSON: I was going to call on other counsel, but it is five minutes to five. We will adjourn until tomorrow at 10 o'clock.

MR. CHRISTIE: Could I ask if it would be possible, due to the fact that the submissions will be somewhat different, I trust, from each of the people who will be opposing the Respondent on this issue, that I allowed to reply as each concludes? It becomes almost impossible to remember everything if we wait until the end when many parties have had their say.

THE CHAIRPERSON: I was going to ask those counsel who are simply supporting Mr. Freiman's position to speak first, but you would rather proceed in some other way?

MR. CHRISTIE: I would if it is possible. In all likelihood, being such responsible counsel as they are, they will have novel and different approaches and won't simply repeat the position of the Commission. To remember all these marvellous submissions and keep them in some kind of order -- I know from what I have heard that there are many things I want to address, even at this stage, and I won't be able to remember them all and keep track of them all if they are even more marvellous than those of the Commission.

THE CHAIRPERSON: Do any other counsel want to comment on that suggestion?

We will proceed in that way tomorrow.

--- Whereupon the Hearing was adjourned at 4:55 p.m.

to resume on Wednesday, April 8, 1998 at 10:00 a.m.