Canada (Human Rights Commission) v. Canadian Liberty Net

Canada (Human Rights Commission) v. Canadian Liberty Net
Collection
Supreme Court Judgments
Date
1998-04-09
Report
[1998] 1 SCR 626
Case number
25228
Judges
L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; McLachlin, Beverley; Major, John C.; Bastarache, Michel
On appeal from
Federal Court of Appeal
Subjects
Courts
Notes
SCC Case Information: 25228
Decision Content
Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626
Canadian Human Rights Commission Appellant
v.
Canadian Liberty Net and Tony McAleer
(alias Derek J. Peterson) Respondents
and between
Canadian Liberty Net and Tony McAleer
(alias Derek J. Peterson) Appellants
v.
Canadian Human Rights Commission Respondent
and
The Attorney General of Canada and the
League for Human Rights of B’Nai Brith Canada Interveners
Indexed as: Canada (Human Rights Commission) v. Canadian Liberty Net
File No.: 25228.
1997: December 10; 1998: April 9.
Present: L’Heureux‑Dubé, Gonthier, McLachlin, Major and Bastarache JJ.
on appeal from the federal court of appeal
Courts -- Jurisdiction -- Interlocutory injunctions -- Federal Court of Canada -- Human rights tribunal empanelled to decide whether certain recorded telephone messages violated Canadian Human Rights Act -- Federal human rights commission seeking injunction to prevent messages being made available until tribunal rendered its final order -- Whether Federal Court had jurisdiction to issue injunction --Federal Court Act, R.S.C., 1985, c. F-7, ss. 3 , 44 -- Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 13(1) .
Contempt of court -- Injunction -- Violation -- Federal Court enjoining parties from making certain phone messages available until human rights tribunal had made its final ruling on whether they violated Canadian Human Rights Act -- Whether parties properly held in contempt of court for violating terms of injunction.
The Canadian Human Rights Commission received several complaints regarding telephone messages made available by an organization advertising itself as “Canadian Liberty Net”. Callers to the Liberty Net phone number were offered a menu of telephone messages to choose from, by subject area, including racist messages. After investigating the content of the messages, the Commission requested that a human rights tribunal be empanelled to decide whether these messages constituted a discriminatory practice under s. 13(1) of the Canadian Human Rights Act . The Commission then applied to the Federal Court, Trial Division, for an injunction prohibiting Liberty Net and Tony McAleer from making any such phone messages available until the human rights tribunal rendered a final order. The injunction was granted. When a commission investigator later telephoned the Liberty Net number, he heard a message referring callers to a new number in the US which contained messages whose content was proscribed by the injunction. Liberty Net and Tony McAleer were found guilty of contempt of court for violating the injunction. The Federal Court of Appeal, in two separate judgments, affirmed the finding of contempt but set aside the interlocutory injunction on the ground that the Trial Division had no jurisdiction to issue it.
Held (McLachlin and Major JJ. dissenting on the jurisdiction appeal): The appeal from the judgment of the Federal Court of Appeal on jurisdiction should be allowed. The appeal from the judgment of the Federal Court of Appeal with respect to the finding of contempt should be dismissed.
1. Injunction appeal: Federal Court jurisdiction
Per L’Heureux-Dubé, Gonthier and Bastarache JJ.: The Federal Court has jurisdiction to issue an injunction in support of the prohibitions contained in the Canadian Human Rights Act . Under s. 44 of the Federal Court Act , the court may grant an injunction “[i]n addition to any other relief” even in the event that the substance of the dispute falls to be determined by another decision-maker. The introductory words of s. 44 do not constitute a clause of limitation. The general statement in s. 3 of the Federal Court Act as to the status of the Federal Court as “a superior court of record having civil and criminal jurisdiction”, combined with the many powers of supervision, control, and enforcement of this and numerous other tribunals, indicates that s. 44 is a power-conferring section.
The doctrine of inherent jurisdiction operates to ensure that there will always be a court which has the power to vindicate a legal right independent of any statutory grant. The court which benefits from the inherent jurisdiction is the court of general jurisdiction, namely, the provincial superior court. However, nothing in the essentially remedial concept of inherent jurisdiction justifies a narrow interpretation of federal statutes granting jurisdiction to the Federal Court. The legitimate proposition that the institutional and constitutional position of provincial superior courts warrants the grant to them of a residual jurisdiction over all federal matters where there is “gap” in statutory grants of jurisdiction is entirely different from the proposition that federal statutes should be read to find “gaps” unless the words of the statute explicitly close them. As is clear from the face of the Federal Court Act , and confirmed by the additional role conferred on it in other federal Acts, Parliament intended to grant a general administrative jurisdiction over federal tribunals to the Federal Court. Within the sphere of control and exercise of powers over administrative decision-makers, the powers conferred on the Federal Court by statute should be interpreted in a fair and liberal fashion. Where an issue is clearly related to the control and exercise of powers of an administrative agency, which includes the interim measures to regulate disputes whose final disposition is left to an administrative decision-maker, the Federal Court can be considered to have a plenary jurisdiction.
In this case, it is within the obvious intendment of the Federal Court Act and the Canadian Human Rights Act that s. 44 grant jurisdiction to issue an injunction in support of the latter Act. The Federal Court has the power to grant “other relief” in matters before the human rights tribunal, and that fact is not altered merely because Parliament has conferred determination of the merits to an expert administrative decision-maker. The decisions and operation of the tribunal are subject to the close scrutiny and control of the Federal Court, including the transformation of the order of the tribunal into an order of the Federal Court. These powers amount to “other relief” for the purposes of s. 44 . This statutory jurisdiction is concurrent with the inherent jurisdiction of a provincial superior court. The requirement that there be valid federal law which nourishes the statutory grant of jurisdiction is also met, by s. 13(1) of the Canadian Human Rights Act .
There is no implied statutory grant of jurisdiction in the Canadian Human Rights Act . An injunctive power has only been implied where that power is actually necessary for the administration of the terms of the legislation; coherence, logicality, or desirability are not sufficient. It is not a necessary incident to any of the tribunal’s functions or powers that there be an injunctive power to restrain violations of s. 13(1) .
In determining whether the exercise of jurisdiction was appropriate, the Cyanamid test should not be applied in cases of pure speech. Since there has been a final determination by the human rights tribunal on the substantive issue of the violation of s. 13(1) , and an order made by the tribunal which supplants the interlocutory injunction order, the injunction appeal is now moot. It is accordingly not necessary to apply the appropriate principles here.
Per McLachlin and Major JJ. (dissenting): Neither the Canadian Human Rights Act nor the Federal Court Act gives the Federal Court jurisdiction to issue an injunction in aid of the Canadian Human Rights Commission pending the determination of a complaint by a human rights tribunal. The scheme of the Canadian Human Rights Act does not contemplate the Federal Court granting injunctive relief in support of alleged breaches of the Act. The jurisdiction sections of the Federal Court Act exhaustively enumerate all cases over which the Federal Court, Trial Division has jurisdiction. None of these provisions grants the Federal Court jurisdiction to issue the injunction sought. Section 25 grants limited original jurisdiction where there is no other court that can hear the matter, but the provincial superior court has jurisdiction to issue the injunction in question. While concurrent jurisdiction between the Federal Court and provincial superior courts exists in limited circumstances, interpretations that result in concurrent jurisdiction are undesirable as they not only detract from our unitary court system, but inevitably result in forum shopping. With regard to s. 44 of the Federal Court Act , the words “[i]n addition to any other relief that the Court may grant or award” indicate that it is an ancillary provision, and does not itself grant jurisdiction to the Federal Court. The Federal Court does not have jurisdiction to hear or determine a complaint based on the Canadian Human Rights Act , since that task is exclusively assigned to the Canadian Human Rights Commission.
2. Contempt appeal
Per L’Heureux-Dubé, Gonthier and Bastarache JJ.: Liberty Net and Tony McAleer knowingly violated the injunction order and were properly found to be in contempt of court. There was an advertisement for a message which violated the terms of the order, and that advertisement was made in Canada, on the very phone line where the offending messages had formerly been available. The advertisement was made with knowledge of the content of those messages and with knowledge that that content violated the terms of the order. Since the Federal Court had jurisdiction to render the order, the most that can be argued is that the jurisdiction was exercised wrongly. Such an order is neither void nor nugatory, and violation of its terms constitutes contempt of court.
Per McLachlin and Major JJ.: Despite the fact that the injunction was issued without jurisdiction, Liberty Net and Tony McAleer were properly found to be in contempt of court.
Cases Cited
By Bastarache J.
Referred to: ITO--International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752; Brotherhood of Maintenance of Way Employees, Canadian Pacific System Federation v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495; Rhine v. The Queen, [1980] 2 S.C.R. 442; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; New Brunswick Electric Power Commission v. Maritime Electric Co., [1985] 2 F.C. 13; Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854; National Bank of Canada v. Granda (1984), 60 N.R. 201; Natural Law Party of Canada v. Canadian Broadcasting Corp., [1994] 1 F.C. 580; Channel Tunnel Group Ltd. v. Balfour Beatty Construction Ltd., [1993] A.C. 334; Siskina (Cargo Owners) v. Distos Compania Naviera S.A., [1979] A.C. 210; Roberts v. Canada, [1989] 1 S.C.R. 322; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; McEvoy v. Attorney General (New Brunswick), [1983] 1 S.C.R. 704; MacMillan Bloedel Ltd. v. Simpson, [1995] 4 S.C.R. 725; Valin v. Langlois (1879), 3 S.C.R. 1; Ontario (Attorney General) v. Pembina Exploration Canada Ltd., [1989] 1 S.C.R. 206; Board v. Board, [1919] A.C. 956; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; Pringle v. Fraser, [1972] S.C.R. 821; American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396; Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110; RJR -- MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311; Herbage v. Pressdram Ltd., [1984] 1 W.L.R. 1160; Rapp v. McClelland & Stewart Ltd. (1981), 34 O.R. (2d) 452; Champagne v. Collège d’enseignement général et professionnel (CEGEP) de Jonquière, [1997] R.J.Q. 2395; R. v. Keegstra, [1990] 3 S.C.R. 697; Libman v. The Queen, [1985] 2 S.C.R. 178.
By McLachlin and Major JJ. (dissenting in part)
ITO--International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752; Brotherhood of Maintenance of Way Employees, Canadian Pacific System Federation v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714; New Brunswick Electric Power Commission v. Maritime Electric Co., [1985] 2 F.C. 13; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; Canadian Union of Public Employees v. Canadian Broadcasting Corp., [1991] 2 F.C. 455; Roberts v. Canada, [1989] 1 S.C.R. 322; Valin v. Langlois (1879), 3 S.C.R. 1; Board v. Board, [1919] A.C. 956; Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307.
Statutes and Regulations Cited
Act to amend “The Supreme and Exchequer Courts Act”, and to make better provision for the Trial of Claims against the Crown, S.C. 1887, c. 16.
Canadian Charter of Rights and Freedoms, s. 2 (b).
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 2 , 3 , 13(1) , 57 , 58 .
Colonial Courts of Admiralty Act, 1890 (U.K.), 53 & 54 Vict., c. 27.
Constitution Act, 1867, ss. 92(14) , 96 , 101 , 129 .
Exchequer Court Amendment Act, 1891, S.C. 1891, c. 26, s. 4.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 3 , 17(6) [rep. & sub. 1990, c. 8, s. 3], 18(1)(a) [rep. & sub. idem, s. 4 ], 18.1 [ad. idem., s. 5 ], 23(c), 25, 26, 44.
Federal Court Rules, C.R.C., c. 663, r. 469(3).
Law and Equity Act, R.S.B.C. 1979, c. 224, s. 36.
Supreme and Exchequer Courts Act, S.C. 1875, c. 11, s. 58.
Authors Cited
Bushnell, Ian. The Federal Court of Canada: A History, 1875-1992. Toronto: University of Toronto Press, 1997.
Cromwell, T. A. “Aspects of Constitutional Judicial Review in Canada” (1995), 46 S.C. L. Rev. 1027.
Hogg, Peter W. Constitutional Law of Canada, vol. 1, loose-leaf ed. Scarborough, Ont.: Carswell, 1992 (updated 1997, release 1).
Hogg, Peter W. “Federalism and the Jurisdiction of Canadian Courts” (1981), 30 U.N.B.L.J. 9.
Laskin, Bora. The British Tradition in Canadian Law. London: Stevens, 1969.
Sharpe, Robert J. Injunctions and Specific Performance, 2nd ed. Aurora, Ont.: Canada Law Book, 1992 (loose-leaf updated December 1997, release 5).
APPEAL from a judgment of the Federal Court of Appeal, [1996] 1 F.C. 804, 192 N.R. 298, 132 D.L.R. (4th) 95, 38 Admin. L.R. (2d) 27, [1996] F.C.J. No. 104 (QL), reversing a decision of Muldoon J., [1992] 3 F.C. 155, 48 F.T.R. 285, 90 D.L.R. (4th) 190, 14 Admin. L.R. (2d) 294, 9 C.R.R. (2d) 330, [1992] F.C.J. No. 207 (QL), granting an interlocutory injunction. Appeal allowed, McLachlin and Major JJ. dissenting.
APPEAL from a judgment of the Federal Court of Appeal, [1996] 1 F.C. 787, 192 N.R. 313, [1996] F.C.J. No. 100 (QL), affirming a finding of contempt by Teitelbaum J., [1992] 3 F.C. 504, 56 F.T.R. 42. Appeal dismissed.
William F. Pentney and Eddie Taylor, for the appellant/respondent the Canadian Human Rights Commission.
Douglas H. Christie, for the respondents/appellants Canadian Liberty Net and Tony McAleer.
David Sgayias, Q.C., and Brian Saunders, for the intervener the Attorney General of Canada.
David Matas, for the intervener the League for Human Rights of B’Nai Brith Canada.
The judgment of L’Heureux-Dubé, Gonthier and Bastarache JJ. was delivered by
//Bastarache J.//
1 Bastarache J. -- This case raises the issue of the existence and proper exercise of an injunctive power in the Federal Court of Canada in support of federal legislation, the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (the “Human Rights Act”). As the injunction sought in this case would prohibit speech, it also implicates important issues regarding the guarantee of freedom of expression in s. 2 (b) of the Canadian Charter of Rights and Freedoms . Finally, there is the question of whether a person who violates an injunction can invoke lack of jurisdiction in the granting court, or wrongful exercise of that jurisdiction, as a defence to proceedings in contempt.
Facts
2 In December 1991, the Canadian Human Rights Commission (the “Commission”) received five complaints regarding telephone messages made available by an organization advertising itself as “Canadian Liberty Net”. Callers to the Liberty Net phone number were offered a menu of telephone messages to choose from, by subject area. These messages included denials of the existence or extent of the Holocaust; assertions that non-white “aliens” are importing crime and problems into Canada, and the implicit suggestion that violence could be helpful to “set matters straight”; criticism of an alleged “Kosher tax” on some foods to ensure that some percentage can be certified as Kosher; complaints about the alleged domination of the entertainment industry by Jews; and a number of messages decrying the alleged persecution of well-known leaders of the white supremacist movement. After having investigated the content of the messages, the Commission requested on January 20, 1992 that a Human Rights Tribunal (the “Tribunal”) be empanelled to decide whether these messages were in violation of s. 13(1) of the Human Rights Act, which makes it a “discriminatory practice . . . to communicate telephonically . . . any matter that is likely to expose a person or persons to hatred or contempt . . . on the basis of a prohibited ground of discrimination”. Section 3 of the Act includes race, national or ethnic origin, colour, and religion as prohibited grounds of discrimination.
3 On January 27, 1992, one week after the request to the Tribunal, the Commission filed an originating notice of motion before the Federal Court of Canada, Trial Division, seeking an injunction, enjoining Liberty Net, including Tony McAleer and any other associates in the Liberty Net organization, from making available any phone messages “that are likely to expose persons to hatred or contempt by reason of the fact that those persons are identifiable on the basis of race, national or ethnic origin, colour or religion”, until a final order of the Tribunal is rendered. On February 5 and 6, the motion was argued, and on March 3, 1992, Muldoon J. granted the injunction sought: [1992] 3 F.C. 155. Upon further submissions of the parties, Muldoon J. varied the content of his order slightly, although those changes are not germane to any controversy in this appeal.
4 A Tribunal was empanelled in response to the Commission’s request and held hearings for a total of five days in May and August 1992. The panel reserved its decision for more than a year, finally rendering a decision on September 9, 1993. Thus, the injunction order of Muldoon J. was in effect for almost 18 months, from March 3, 1992 until September 9, 1993.
5 On June 5, 1992, a Commission investigator telephoned the Liberty Net phone number and heard a message referring callers to a new number of the Canadian Liberty Net “in exile” where they could “say exactly what we want without officious criticism and sanction”. This new number was rented from a telephone company in the State of Washington, in the United States. Callers to that number then had access to a similar menu of messages as had been available prior to the issuance of Muldoon J.’s order of March 3. Indeed, Liberty Net admitted before the Court of Appeal that some of those messages were specifically covered by the injunction, but they contended that the messages were not in breach of the order because they emanated from a source outside Canada, and thus outside the jurisdiction of the Federal Court.
Issues
6 Two separate cases heard by the Federal Court have been combined in the appeal now before this Court. One is an appeal from the original order of Muldoon J. as to the issuance of the order (I will refer to this as the “injunction appeal”); the other is an appeal from a finding of contempt of court by Teitelbaum J. ([1992] 3 F.C. 504) arising from the message on the Canadian Liberty Net phone line referring callers to the new number in the United States which contained messages whose content was proscribed by the order (the “contempt appeal”). The injunction appeal divides into two questions: first, did the Federal Court have jurisdiction to issue the injunction? Second, if it did have jurisdiction to issue the injunction, was the issuance of an injunctive order appropriate in this case? The contempt appeal has been inextricably tied to the substance of the injunction appeal by the defendants in this case. The third question before this Court, which arises from the contempt appeal, is: if the injunction was wrongly issued on either basis above, can the defendants be held in contempt of court for breach of the order?
7 Strictly speaking, since there has been a final determination by the Human Rights Tribunal on the substantive issue of the violation of s. 13(1) , and an order made by the Tribunal which supplants the order of Muldoon J., the injunction appeal is now moot. However, given the manner in which the questions have been presented to this Court, it is impossible to address the contempt issue without addressing to some degree the injunction issue. Since it would be inconvenient and difficult at the outset to distinguish those principles pertaining to the injunction which are necessary to the contempt appeal from those which are not, I propose to articulate those principles as fully as possible given the facts of the case before us, and then turn to the contempt appeal. In my view, this is particularly important since there appears to have been considerable confusion in the courts below in distinguishing the tests for determining the existence of jurisdiction, from the appropriateness of exercising jurisdiction in a particular case. Having once set out and distinguished those principles, however, it is my view that there clearly is no need to apply the principles as to the appropriateness of the injunction in this case, as the contempt appeal in no way turns on that point. That point is undoubtedly moot and I propose to leave the application of those principles to specific facts for another day.
First Question: Does the Federal Court Have Jurisdiction?
8 Does the Federal Court have jurisdiction to issue an injunction in support of the prohibitions contained in the Human Rights Act? The classic statement as to the jurisdiction of the Federal Court in modern jurisprudence was given by McIntyre J. in ITO—International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, at p. 766, who posits three requirements:
1. There must be a statutory grant of jurisdiction by the federal Parliament.
2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.
3. The law on which the case is based must be “a law of Canada” as the phrase is used in s. 101 of the Constitution Act, 1867 .
In my view, it is the first of these three conditions which presents the greatest obstacle for the Commission. It attempted to found a statutory grant of jurisdiction on three grounds arising from the interlocking structure of the Federal Court Act, R.S.C., 1985, c. F-7 , and the Human Rights Act.
(i) Section 25 of the Federal Court Act
9 25. The Trial Division has original jurisdiction, between subject and subject as well as otherwise, in any case in which a claim for relief is made or a remedy is sought under or by virtue of the laws of Canada if no other court constituted, established or continued under any of the Constitution Acts, 1867 to 1982 has jurisdiction in respect of that claim or remedy.
Muldoon J. found that no other court had jurisdiction over an interlocutory order giving effect to the Human Rights Act (at p. 168) and that this section therefore was a grant of jurisdiction to the Federal Court. The Tribunal was not competent to issue an interlocutory, only a final, order. By contrast, Strayer J.A. for the majority of the Court of Appeal ([1996] 1 F.C. 804) engaged in an extensive analysis of the provisions of the Human Rights Act and found that Parliament had implicitly intended the scheme of remedies conferred on the Tribunal to be exhaustive. Thus, another court (the Tribunal) had, in fact, been vested with jurisdiction which ousted that of the Federal Court pursuant to s. 25. He also asserted, obiter, that a provincial superior court did not have jurisdiction to issue an injunction.
10 Before this Court, the appellant abandoned its argument under s. 25. It did so on the basis of this Court’s decision in Brotherhood of Maintenance of Way Employees, Canadian Pacific System Federation v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495, in which this Court held that a provincial superior court constituted under s. 96 of the Constitution Act, 1867 , does have authority to issue an injunction in aid of the Canadian Labour Code, R.S.C., 1985, c. L-2 , notwithstanding the comprehensiveness of the provisions of that Act. McLachlin J. stated the law succinctly (at paras. 5 and 7):
The governing principle on this issue is that notwithstanding the existence of a comprehensive code for settling labour disputes, where “no adequate alternative remedy exists” the courts retain a residual discretionary power to grant interlocutory relief such as injunctions, a power which flows from the inherent jurisdiction of the courts over interlocutory matters. . . .
. . . deference to labour tribunals and exclusivity of jurisdiction to an arbitrator are not inconsistent with a residual jurisdiction in the courts to grant relief unavailable under the statutory labour scheme. There has never been any dispute in this case that the arbitrator and the arbitrator alone is entitled to resolve the dispute between the employer and the employees.
The “courts” to which she refers are the provincial superior courts, and, in that case, the British Columbia Supreme Court “in the exercise of its inherent jurisdiction” (at para. 6). The features of the Canada Labour Code in issue in the Brotherhood case are in all salient respects identical to the features of the Human Rights Act: an administrative tribunal vested with power of final determination of claims brought under an Act; absence of reference to injunctive relief in the Act; and a tailored scheme of other remedies which was held not to implicitly preclude the existence of an injunctive remedy. The appellant concluded that those facts were applicable to the case at bar, and that, therefore, there was an “other court” which had jurisdiction which precluded the operation of s. 25.
11 Section 25 was not before the Court in Brotherhood, and the relationship between that section and the inherent jurisdiction of a provincial superior court was not the object of that decision. The appellant’s concession before us relates to this relationship. Given my findings below as to the proper interpretation of s. 44 of the Federal Court Act , and in the absence of argument by the parties on this point, I prefer to exercise caution and refrain from expressing any opinion on this issue.
(ii) Implied Grant in the Human Rights Act
12 The Commission urged Rhine v. The Queen, [1980] 2 S.C.R. 442, upon us for the proposition that there need not be an express grant of authority for jurisdiction to be found in the provisions of a federal Act. But in that case, there was a clear statutory grant of jurisdiction under the Federal Court Act and the issue being decided by this Court, to use the language adopted in ITO, supra, was whether the cause of action was nourished by existing federal law. The principles in that case are not applicable to the question of whether there is an implied statutory grant.
13 Although Muldoon J. did not consider the question of implied statutory grant in the Human Rights Act, Strayer J.A. devotes a significant part of his analysis to this question. He draws upon remarks by Dickson C.J. in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, at p. 924, as to the “conciliatory nature” of the procedures under the Act, whose objective is “to encourage reform of the communicator of hate propaganda”. Dickson C.J. is also quoted as observing that “s. 13(1) plays a minimal role in the imposition of moral, financial or incarcerating sanctions, the primary goal being to act directly for the benefit of those likely to be exposed to the harms caused by hate propaganda” (p. 940). Strayer J.A. asserts (at p. 822) that:
The result in the Supreme Court, I believe, demonstrates the reason for the very cautious approach taken by Parliament in section 13 to remedy telephone hate messages within the context of the remedial provisions of the Canadian Human Rights Act . It also militates against there being an implied authority for the courts to issue interlocutory orders to stop communications prior to a full hearing by a tribunal. . . . The violation of an injunction based on such evidence involves criminal sanctions, something not contemplated by the Act until a full hearing by a tribunal, its determination of a violation of subsection 13(1), the issue of the prohibitory order, and the violation of that order.
14 With respect, this reasoning suffers from two flaws. First, the concerns expressed in the passage above could be dealt with in the context of the criteria for determining the appropriateness of issuing an injunction. A stringent test for the issuance of an injunction would satisfy Strayer J.A.’s concern that the constitutional constraints on the exercise of judicial power under s. 13(1) be respected. In my view, assuming that these concerns affect an implied jurisdiction is to mistake the question of appropriateness of exercising, for the existence, of the injunctive power.
15 Second, Strayer J.A. does not indicate the criteria which he considers necessary for a finding of implied jurisdiction. The intervener Attorney General of Canada advocated a relatively flexible and fluid approach to determining whether jurisdiction should be implied from the provisions of federal legislation, and suggested that the Human Rights Act contained such an implied jurisdiction. Indeed, although Strayer J.A. finds against Federal Court jurisdiction in this case, his methodology actually lends support to the idea of a relatively fluid approach to implied jurisdiction.
16 In my opinion, the standard for finding an implied power in the existing jurisprudence is actually much more stringent. An injunctive power has only been implied where that power is actually necessary for the administration of the terms of the legislation; coherence, logicality, or desirability are not sufficient. The Attorney General cited two cases: New Brunswick Electric Power Commission v. Maritime Electric Co., [1985] 2 F.C. 13, and Cooper v. Canada (Human Rights Commission), [1996] 3 S.C.R. 854. In the latter case, the implied “jurisdiction” referred not to remedy, but rather to whether the Human Rights Commission had the power to make determinations as to the constitutionality of its own constitutive statute. In considering that question, La Forest J., at para. 59, stated that “[i]n such an endeavour practical considerations may be of assistance in determining the intention of Parliament, but they are not determinative”. But the “endeavour” in that case was not the addition of remedies to those spelled out in an Act, but rather the standard of review exercisable by a court over an administrative body. Reading a remedial power into a statute is of an entirely different nature than attempting to determine legislative intent as to the proper standard of review and relative competence to decide constitutionality as between an administrative body and a court. In the latter case, the function must be exercised by one or the other institution, whereas in the former, the issue is whether the power exists at all where the Act is silent. Attempting to use the rules of implicit legislative intent in one case should not be automatically inferred for the other case.
17 The leading Federal Court authority on “implied” remedial jurisdiction suggests that far more conservative interpretative principles apply. In New Brunswick Electric Power, supra (per Stone J.A., Mahoney and Ryan JJ.A. concurring), the Federal Court of Appeal found that there was an implied right to issue a stay of execution of an order of the National Energy Board pending the disposition of an appeal where there was a statutory right of appeal. Quoting from an obiter remark of Pratte J.A. in National Bank of Canada v. Granda (1984), 60 N.R. 201, at p. 202, the court observed (at p. 27):
It is clear that those provisions do not expressly confer on the court a power to stay the execution of decisions which it is asked to review. However, it could be argued that Parliament has conferred this power on the court by implication, in so far as the existence and exercise of the power are necessary for the court to fully exercise the jurisdiction expressly conferred on it by s. 28. In my opinion, this is the only possible source of any power the Court of Appeal may have to order a stay in the execution of a decision which is the subject of an appeal under s. 28. It follows logically that, if the court can order a stay in the execution of such decisions, it can only do so in the rare cases in which the exercise of this power is necessary to allow it to exercise the jurisdiction conferred on it by s. 28. [Emphasis added.]
In that case, failure to order a stay would have rendered the provision for the appeal nugatory. To a similar effect, and in contrast to the position of a court of inherent jurisdiction, the following observations were made in Natural Law Party of Canada v. Canadian Broadcasting Corp., [1994] 1 F.C. 580 (T.D.) (per McKeown J.), at pp. 583-84:
There is no provision in the Broadcasting Act for providing relief on an expedited basis, but this does not mean that the Federal Court of Canada can obtain jurisdiction. Section 23 of the Federal Court Act . . . limits the jurisdiction of the Federal Court to the extent that jurisdiction has been otherwise specially assigned. Since the Broadcasting Act has assigned jurisdiction to the CRTC, I do not have jurisdiction.
This Court is a statutory court. I am unable to rely on the inherent jurisdiction of other superior courts as was the case in Green Party Political Assn. of British Columbia v. Canadian Broadcasting Corp. (CBC) . . . where Collver J. accepted jurisdiction. Collver J. was a Judge of the Supreme Court of British Columbia, which is not a statutory court. There is no gap in the jurisdiction.
Because s. 23 of the Federal Court Act referred the question of jurisdiction to the Broadcasting Act , the Court looked primarily to that Act as the foundation for its jurisdiction. Distinguishing his position from that of a court of inherent jurisdiction, McKeown J. refused to read that Act liberally to imply a power, even though he recognized that an inherent jurisdiction court might do so. Subject to what I have to say below about the operation of s. 44 , this decision also indicates that “gaps” within federal legislation may only be filled where such a power is a necessary incident to the discharge of the scheme of the Act as constituted.
18 The scheme of the Human Rights Act does not come close to that. It is not a necessary incident to any of the Tribunal’s functions or powers that there be an injunctive power to restrain violations of s. 13(1). The existence of a “gap” in the range of remedies available in the Act itself does not mean that Parliament intended the Federal Court to have the power to issue an injunction. The Act could just as easily be read to mean that Parliament intended the “gap” to exist. Under these circumstances, it is inappropriate to engage in an extensive analysis of what is desirable to carry out the aims of the Act. The threshold test was precisely stated by Stone J.A. in New Brunswick Electric Power, supra, at p. 27:
These observations bring into focus the absurdity that could result if, pending an appeal, operation of the order appealed from rendered it nugatory. Our appellate mandate would then become futile and be reduced to mere words lacking in practical substance. . . . The appeal process would be stifled. It would not, as it should, hold out the possibility of redress to a party invoking it. This Court could not, as was intended, render an effective result.
It cannot be said that the other remedies contained in the Human Rights Act would be rendered “nugatory” in the absence of an injunctive power in the Federal Court. Failing that, no such power can be implied into the scheme of the Act.
(iii) Section 44 of the Federal Court Act
19 Section 44 states:
44. In addition to any other relief that the Court may grant or award, a mandamus, injunction or order for specific performance may be granted or a receiver appointed by the Court in all cases in which it appears to the Court to be just or convenient to do so, and any such order may be made either unconditionally or on such terms and conditions as the Court deems just.
A number of other sections of the Federal Court Act and Human Rights Act are helpful in understanding the ambit of this section. First, there are those sections setting out the purposes of the Act relevant to this appeal:
Human Rights Act
2. The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that every individual should have an equal opportunity with other individuals to make for himself or herself the life that he or she is able and wishes to have, consistent with his or her duties and obligations as a member of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, marital status, family status, disability or conviction for an offence for which a pardon has been granted.
13. (1) It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.
Second, there are descriptions of the general status and purpose of the Federal Court:
Federal Court Act
3. The court of law, equity and admiralty in and for Canada now existing under the name of the Federal Court of Canada is hereby continued as an additional court for the better administration of the laws of Canada and shall continue to be a superior court of record having civil and criminal jurisdiction.
Constitution Act, 1867
101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.
Third, there are a number of sections of both Acts which describe the powers and relationship between the Federal Court and the Human Rights Act adjudication scheme:
Human Rights Act
57. Any order of a Tribunal . . . may, for the purpose of enforcement, be made an order of the Federal Court by following the usual practice and procedure or, in lieu thereof, by the Commission filing in the Registry of the Court a copy of the order certified to be a true copy, and thereupon that order becomes an order of the Court.
58. (1) Where any investigator or Tribunal requires th