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:
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.
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 the disclosure of any information and a minister of the Crown or any other person interested objects to its disclosure, the Commission may apply to the Federal Court for a determination of the matter.
17. . . .
(6) Where an Act of Parliament confers jurisdiction in respect of a matter on a court constituted or established by or under a law of a province, the Trial Division has no jurisdiction to entertain any proceeding in respect of the same matter unless the Act expressly confers that jurisdiction on the Court.
18. (1) Subject to section 28 [having to do with the original jurisdiction of the Federal Court of Appeal], the Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal . . . .
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
. . .
(3) On an application for judicial review, the Trial Division may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
20 The principal objection to s. 44 as a source of jurisdiction to issue an injunction is that there is no “other relief that the Court may grant or award” in this case. This objection has two versions. The first version is that the words used in s. 44 cannot support the exercise of a “free-standing” injunction — that is, an injunction granted where there is no action pending before the court as to the final resolution of the merits of the claim. This objection does not relate to the status of the Federal Court as distinguished from provincial superior courts; rather, it asserts that words akin to s. 44 as applied to any court could not support a free-standing injunction, but only an interlocutory injunction pending the determination before that court of the cause of action. The objection arises out of a controversy to this effect in English law which has now been resolved by the recent decision of the House of Lords in Channel Tunnel Group Ltd. v. Balfour Beatty Construction Ltd., [1993] A.C. 334. In that case, the issue was whether an English court had jurisdiction to grant an injunction where it was likely (although not certain) that an arbitral body had jurisdiction over the final determination of the dispute. In commenting on a previous case, Siskina (Cargo Owners) v. Distos Compania Naviera S.A., [1979] A.C. 210 (H.L.), which appeared to suggest that there was no such jurisdiction, Lord Browne-Wilkinson stated (at pp. 342-43) that:
I can see nothing in the language employed by Lord Diplock (or in later cases in this House commenting on The Siskina) which suggest that a court has to be satisfied, at the time it grants interlocutory relief, that the final order, if any, will be made by an English court. . . .
Even applying the test laid down by The Siskina the court has power to grant interlocutory relief based on a cause of action recognised by English law against a defendant duly served where such relief is ancillary to a final order whether to be granted by an English court or by some other court or arbitral body.
That approach has now been adopted by this Court in the Brotherhood case already mentioned, where McLachlin J. comments (at para. 16):
Canadian courts since Channel Tunnel have applied it for the proposition that the courts have jurisdiction to grant an injunction where there is a justiciable right, wherever that right may fall to be determined. . . . This accords with the more general recognition throughout Canada that the court may grant interim relief where final relief will be granted in another forum. . . .
The wording of the clause granting jurisdiction to the Supreme Court of British Columbia in Brotherhood was virtually identical to that in effect in England at the time of The Siskina, supra. The Law and Equity Act, R.S.B.C. 1979, c. 224, states:
36. A mandamus or an injunction may be granted or a receiver or receiver manager appointed by an interlocutory order of the court in all cases in which it appears to the court to be just or convenient that the order should be made, and the order may be made either unconditionally or on terms and conditions the court thinks just. . . .
By virtue of this decision, there is now no doubt that the power of a court of inherent jurisdiction to award injunctive relief extends to disputes even in the event that the substance of the dispute falls to be determined by another decision-maker. Based on the principles articulated in Brotherhood, it is clear that if this injunction had been sought before the Supreme Court of British Columbia, that court could have granted the order.
21 This brings us to the more difficult version of the objection mentioned above. Section 44 uses the words “[i]n addition to any other relief that the Court may grant or award”. The plain words might be interpreted in two quite divergent ways. The Commission contends that “in addition to” means simply “separate and apart from” any other relief which the Federal Court may grant or award. Rather than a clause of limitation, it is said to be an introductory clause to a power-conferring section which is, in all purposes and effects, identical to s. 36 of the Law and Equity Act. By contrast, the words “in addition to” might be read as a clause of limitation, which creates an injunctive power only “ancillary to” other remedies which the court could award. Since no other relief may be issued by the Federal Court at the interlocutory stage, it is argued, no injunction is authorized by this section. The idea that there is “other relief” conferred on the court under the interlocking scheme of the Human Rights Act and the Federal Court Act is rejected, largely on the basis of a strict reading of s. 44. I would add that even if we adopt the “ancillary to” interpretation favoured by the respondents, a liberal approach to those words could favour an interpretation of the various powers of supervision over the Human Rights Tribunal as orders “ancillary to” which an injunctive order could be issued under s. 44.
22 I should say at the outset that I find that both the interpretations which favour a grant of jurisdiction, and that which does not, are plausible on the face of the section. When confronting an interpretative challenge such as this, it is necessary to examine the entire Act in question in order to determine its intendment, and to determine whether the language of the Act can support distinguishing this case from Brotherhood. The respondents contend that a reading which denies jurisdiction to grant the injunctive remedy is justified by the Federal Court’s status as a mere “statutory court”, which requires grants of jurisdiction to be read narrowly. By contrast, the Supreme Court of British Columbia is a superior court of inherent jurisdiction, and only it has jurisdiction to issue the injunction in this case.
23 That outcome appears anomalous. The sections of the Human Rights Act and Federal Court Act indicate a high degree of supervision of the Human Rights Tribunal by the Federal Court. The Federal Court is responsible for judicial review over decisions of the Tribunal (Federal Court Act, s. 18.1); it may issue injunctions against the Tribunal (Federal Court Act, s. 18(1)); recourse to it is necessary to order disclosure of information required in the course of an investigation or Tribunal hearing (Human Rights Act, s. 58(1)); and, an order of the Tribunal may be filed with and transformed into an order of the Federal Court (Human Rights Act, s. 57). And yet, it is argued that none of these powers are to be accepted as “other relief” because the relief sought at the interlocutory, or pre-filing stage, is said to be conceptually distinct from the relief which may be ordered under these provisions. Meanwhile, the provincial superior court would be competent as a court of “inherent jurisdiction”.
24 Of course, while policy factors may be helpful in gleaning Parliament’s intention as to whether there has been a statutory grant, they cannot be determinative. But the general statement in s. 3 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 many other Tribunals, leaves one wondering why statutory authorization could not be inferred from s. 44 when its language is similar to that used to describe the powers of a superior court in s. 36 of the Law and Equity Act.
25 At this point, it is necessary to explore more carefully the concept of “inherent jurisdiction” to determine how it operates to give the provincial superior court remedial jurisdiction, and why this would require that the Federal Court, described as a “statutory court”, would be bound by a very strict and narrow reading of its authorizing statute which effectively would deprive it of jurisdiction over an area where it is otherwise explicitly given extensive powers of supervision. Indeed, the doctrine of inherent jurisdiction has been used in this case as a corollary for the proposition that a federal statute granting authority to the Federal Court should be read narrowly. Whether the doctrine of inherent jurisdiction supports that approach merits closer inspection.
26 In Roberts v. Canada, [1989] 1 S.C.R. 322, at p. 331, Wilson J. articulated the narrow view:
The statutory grant of jurisdiction by Parliament to the Federal Court is contained in the Federal Court Act. Because the Federal Court is without any inherent jurisdiction such as that existing in provincial superior courts, the language of the Act is completely determinative of the scope of the Court’s jurisdiction.
What is this notion of inherent jurisdiction which is used to justify a strict approach to the interpretation of the Federal Court Act? The notion of inherent jurisdiction has developed from the role of provincial superior courts in Canada’s legal system. The unique historical feature of provincial superior courts, as opposed to the Federal Court, is that they have traditionally exercised general jurisdiction over all matters of a civil or criminal nature. This general jurisdictional function in the Canadian justice system precedes Confederation, and was expressly continued by s. 129 of the Constitution Act, 1867, “as if the Union had not been made”. Under s. 92(14), the provinces exercise authority over the “Administration of Justice in the Province”, including the “Constitution, Maintenance, and Organization” of provincial superior courts. The unique institutional feature of these courts is that by s. 96 of the Constitution Act, 1867, judges of provincial superior courts are appointed by the Governor General, not by the provinces. Responsibility for s. 96 courts is thus shared between the two levels of government, unlike either inferior provincial courts, or courts created under s. 101. Estey J., in Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, at pp. 326-27, explained the unique nature of provincial superior courts in the following way:
The provincial superior courts have always occupied a position of prime importance in the constitutional pattern of this country. They are the descendants of the Royal Courts of Justice as courts of general jurisdiction. They cross the dividing line, as it were, in the federal-provincial scheme of division of jurisdiction, being organized by the provinces under s. 92(14) of the [Constitution Act, 1867] and are presided over by judges appointed and paid by the federal government (sections 96 and 100 of the [Constitution Act, 1867]).
27 In addition to s. 129 providing for the post-Confederation continuation of provincial superior courts, s. 96 also impliedly contemplates their continued existence. The constitutional fact of their continued existence endorses their general jurisdiction and, in effect, guarantees a traditional core of superior court jurisdiction (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. See also Valin v. Langlois (1879), 3 S.C.R. 1, at pp. 19-20; Ontario (Attorney General) v. Pembina Exploration Canada Ltd., [1989] 1 S.C.R. 206, at p. 217; Hogg, “Federalism and the Jurisdiction of Canadian Courts” (1981), 30 U.N.B.L.J. 9).
28 The historical origins and constitutional basis of the Federal Court of Canada demonstrate its more particular, as opposed to general, jurisdiction. Section 101 of the Constitution Act, 1867 authorizes Parliament to create “any additional Courts for the better Administration of the Laws of Canada”. This it did, in 1875, with the establishment of the Exchequer Court, which was granted a very limited jurisdiction, confined to “cases in which demand shall be made or relief sought in respect of any matter which might in England be the subject of a suit or action in the Court of Exchequer on its revenue side against the Crown, or any officer of the Crown” (Supreme and Exchequer Courts Act, S.C. 1875, c. 11, s. 58). In 1887, and again in 1890 and 1891, this jurisdiction was expanded modestly, to cover intellectual property, other actions brought by the government, admiralty, and expropriation of land by the government (An 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; the Colonial Courts of Admiralty Act, 1890 (U.K.), 53 & 54 Vict., c. 27; The Exchequer Court Amendment Act, 1891, S.C. 1891, c. 26, s. 4). From an interpretation of the Federal Court’s constitutional origins in s. 101, Professor Hogg draws the following conclusions (in Constitutional Law of Canada (loose-leaf ed.), vol. 1, at p. 7-15):
Section 101 does not authorize the establishment of courts of general jurisdiction akin to the provincial courts. It only authorizes courts “for the better administration of the laws of Canada”. This has two important consequences. First, it means that the Federal Court of Canada has no inherent jurisdiction; its jurisdiction is confined to those subject matters conferred upon it by the Federal Court Act or other statute. Secondly, it means that the Federal Court can be given jurisdiction over only subject matters governed by the “laws of Canada”.
Thus, even when squarely within the realm of valid federal law, the Federal Court of Canada is not presumed to have jurisdiction in the absence of an express federal enactment. On the other hand, by virtue of their general jurisdiction over all civil and criminal, provincial, federal, and constitutional matters, provincial superior courts do enjoy such a presumption.
29 This presumption is not a necessary incident of the structure of our Constitution. Section 101 empowers Parliament to create a federal court with general jurisdiction over the administration of all federal law. For whatever reasons, Parliament has not chosen to create such a court. Moreover, the presumption is the product of a long line of jurisprudence which has responded to the constitutional and historical indications described above, rather than an explicit constitutional requirement. Apposite are the comments of Bora Laskin, later Chief Justice of Canada, who described the situation in 1969 (in The British Tradition in Canadian Law, at pp. 113-14):
There has been no great need in Canada to establish a separate system of federal courts for federal law, because, as a mere matter of course, provincial courts have from the beginning of the Canadian federation exercised jurisdiction in disputes arising out of or involving federal law. Unlike the case in Australia, where the Constitution empowers the Commonwealth Parliament to invest the State courts with jurisdiction in federal matters, the British North America Act is not express on the matter. Inferentially, the legislative authority of the Provinces in relation to the administration of justice therein, and including the constitution, organisation and maintenance of provincial courts both of civil and criminal jurisdiction — without limitation as to matters within federal competence — is an indication of the availability of provincial courts for litigating federal causes of action and for enforcing federal criminal law. . . . They may be considered, pro tanto, as federal courts in so far as they administer federal law.
. . . This view of the omnicompetence of provincial superior courts was fed by a decision of the Privy Council, suggestive of inherent superior court jurisdiction, that (to use its words) “if the right exists, the presumption is that there is a Court which can enforce it, for if no other mode of enforcing it is prescribed, that alone is sufficient to give jurisdiction to the [Queen’s] Courts of justice”. [Emphasis added.]
30 The case quoted by Laskin, Board v. Board, [1919] A.C. 956 (P.C.), concerned the jurisdiction of the provincial superior court in Alberta to deal with matters arising under the Matrimonial Causes Act, 1857 ((U.K.), 20 & 21 Vict., c. 85). Although marriage and divorce fall within s. 91 of the Constitution Act, 1867, and the applicable English law was received into federal law as a consequence, the provincial superior court was held to have jurisdiction in the absence of any express federal enactment which conferred jurisdiction. The reason for this was quite simple. As of 1919, Parliament had only granted a very limited jurisdiction to the federal court system, as noted above, which did not include jurisdiction over marriage and divorce matters. By contrast, the Supreme Court Act of Alberta, S.A. 1907, c. 3, passed in 1907, expansively based the jurisdiction of the superior courts of that province on
the jurisdiction which on July 15, 1870, was vested in, or capable of being exercised in England by (1.) the High Court of Chancery, as a Common Law Court, as well as a Court of Equity, including the jurisdiction of the Master of the Rolls as a judge or Master of the Court of Chancery, and any jurisdiction exercised by him in relation to the Court of Chancery as a common law Court; (2.) The Court of Queen’s Bench; (3.) The Court of Common Pleas at Westminster; (4.) The Court of Exchequer as a Court of Revenue as well as a Common Law Court; (5.) The Court of Probate; (6.) The Court created by Commissioners of Oyer and Terminer, and of Gaol Delivery, or of any of such Commissions.
(Per Viscount Haldane, at p. 960, referring to s. 9 of the Act.)
31 Perhaps as a result of an oversight, the English court responsible for divorces was not among those courts listed above. Nevertheless, the Privy Council held, on the basis of the Supreme Court of Alberta’s general jurisdiction, that “that Court was bound to entertain and to give effect to proceedings for making [the right of divorce] operative” (p. 962). In referring to its interpretation of the jurisdiction-conferring clause of Alberta’s Supreme Court Act of 1907, the Privy Council explained its reasons for recognizing the jurisdiction of the Supreme Court of Alberta in the following manner (at pp. 962-63):
. . . a well-known rule makes it plain that the language there used ought to be interpreted as not excluding the jurisdiction. If the right exists, the presumption is that there is a Court which can enforce it, for if no other mode of enforcing it is prescribed, that alone is sufficient to give jurisdiction to the King’s Courts of justice. In order to oust jurisdiction, it is necessary, in the absence of a special law excluding it altogether, to plead that jurisdiction exists in some other Court. This is the effect of authorities . . . [The Alberta] Act set up a Superior Court, and it is the rule as regards presumption of jurisdiction in such a Court that, as stated by Willes J. in London Corporation v. Cox ((1867) L.R., 2 H.L. 239, 259), nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so.
32 The notion of “inherent jurisdiction” arises from the presumption that if there is a justiciable right, then there must be a court competent to vindicate the right. The issue addressed in Board v. Board was whether a failure to grant jurisdiction should be read as implicitly excluding jurisdiction. In that context, the doctrine of inherent jurisdiction requires that only an explicit ouster of jurisdiction should be allowed to deny jurisdiction to the superior court. In my view, the case does not stand for the fundamentally different proposition that statutes which purport to grant jurisdiction to another court should be read narrowly so as to protect the jurisdiction of the superior court. That is not the purpose of the doctrine of inherent jurisdiction, which is simply to ensure that a right will not be without a superior court forum in which it can be recognized. Although certain language in Board v. Board could be taken to stand for the former proposition, a reading of the entire case indicates that a choice was not being made between the jurisdiction of the s. 96 court and the jurisdiction of the federal court (which was extremely narrow at the time). The Privy Council simply did not consider the possible jurisdiction of the Exchequer Court in Board v. Board. The case was not an attempt to answer the question “which court?”, but rather “is there a court?” The former question can only be determined by considering the constitutional, statutory and historical factors which I have canvassed above, while the latter can be dealt with by means of the simple presumption that only an express ouster will deny jurisdiction to the superior court to hear such a case.
33 The statutory position of the Federal Court has changed since Board v. Board, a case in which the possible jurisdiction of the Exchequer Court was not even considered, because its jurisdiction at that time was so marginal. The passage of the Federal Court Act in 1971 substantially expanded the jurisdiction of the Exchequer Court (and changed its name to the Federal Court of Canada), and by necessary implication, removed jurisdiction over many matters from the provincial superior courts. The new Federal Court of Canada was granted an expanded jurisdiction, not only by specific enumeration of new subject matters, as, for example, in s. 23(c) of the Act, but also in a more general fashion. In essence, by virtue of ss. 3, 18, and 18.1, it was made a court of review and of appeal which stands at the apex of all the administrative decision-makers on whom power has been granted by individual Acts of Parliament. Significant confusion had developed prior to the Act as superior courts in different provinces reached conflicting outcomes as to the disposition of applications for judicial review from these administrative decision-makers, as to the proper test for standing, and as to the geographical reach of their decisions (I. Bushnell, The Federal Court of Canada: A History, 1875-1992 (1997), at p. 159). The growth of administrative decision-makers adjudicating a myriad of laws within federal competence, without a single court to supervise that structure below the Supreme Court of Canada, created difficulties which an expanded Federal Court was intended to address.
34 These are the historical and constitutional factors which led to the development of the notion of inherent jurisdiction in provincial superior courts, which to a certain extent has been compared and contrasted to the more limited statutory jurisdiction of the Federal Court of Canada. But in my view, there is nothing in this articulation of the essentially remedial concept of inherent jurisdiction which in any way can be used to justify a narrow, rather than a fair and liberal, 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 a “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. The doctrine of inherent jurisdiction raises no valid reasons, constitutional or otherwise, for jealously protecting the jurisdiction of provincial superior courts as against the Federal Court of Canada.
35 In my view, the doctrine of inherent jurisdiction operates to ensure that, having once analysed the various statutory grants of jurisdiction, 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. The doctrine does not operate to narrowly confine a statutory grant of jurisdiction; indeed, it says nothing about the proper interpretation of such a grant. As noted by McLachlin J. in Brotherhood, supra, at para. 7, it is a “residual jurisdiction”. In a federal system, the doctrine of inherent jurisdiction does not provide a rationale for narrowly reading federal legislation which confers jurisdiction on the Federal Court.
36 As is clear from the face of the Federal Court Act, and confirmed by the additional role conferred on it in other federal Acts, in this case the Human Rights Act, 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 not be interpreted in a narrow fashion. This means that 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.
37 In this case, I believe it is within the obvious intendment of the Federal Court Act and the Human Rights Act that s. 44 grant jurisdiction to issue an injunction in support of the latter. I reach this conclusion on the basis that the Federal Court does have 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. As I have noted above, 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.
38 In my view, this statutory jurisdiction is concurrent with the inherent jurisdiction of a provincial superior court in accordance with the principles of Brotherhood. There is no repugnance in the concept of a concurrent jurisdiction; indeed, it is common in our judicial structure. As one author has observed (T. A. Cromwell, “Aspects of Constitutional Judicial Review in Canada” (1995), 46 S.C. L. Rev. 1027, at p. 1030):
The provincial superior courts and the purely provincial courts share large areas of concurrent jurisdiction, particularly in criminal law. While considerably less significant, there also is a good deal of overlap in the civil jurisdiction of the provincial superior courts and the Federal Court.
The standard for a complete ouster of the s. 96 court’s jurisdiction is significantly higher than that for determining whether jurisdiction has been granted at all. This is appropriate because, as a result of our federal division of powers, the exercise of jurisdiction over the same matter is based on heads of power which are not mutually exclusive. An example of this lack of mutual exclusivity is provided in this Court’s decision in Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, which involved a challenge to the Justice Minister’s decision not to exercise his discretionary authority to refuse to extradite the appellant. Review of that decision was conferred on the Federal Court by virtue of s. 18 of the Federal Court Act, which granted jurisdiction based on the identity of the decision-maker as a Federal Minister. The appellant sought a writ of habeas corpus and a writ of certiorari in aid to quash the warrant of surrender on the grounds of improper procedures followed by the Minister. Vindication of the liberty interest through the writ of habeas corpus is a traditional function of a s. 96 court. I note that in the case at bar there is a similar asymmetry: on the one hand, the granting of an injunction generally is a traditional function of s. 96 courts; on the other hand, the issuance of this injunction is integrally connected to the functioning of an administrative tribunal under the supervisory jurisdiction of the Federal Court. In considering whether the latter jurisdiction had been displaced or ousted by virtue of the Federal Court Act, Cory J. for a unanimous Court on this point said, at p. 651:
The Federal Court Act does not remove the historic and long standing jurisdiction of provincial superior courts to hear an application for a writ of habeas corpus. To remove that jurisdiction from the superior courts would require clear and direct statutory language such as that used in the section referring to members of the Canadian Forces stationed overseas. It follows that the respondents fail in their contention that the Federal Court has exclusive jurisdiction in this matter. Rather it is clear that there is concurrent jurisdiction in the provincial superior courts and the Federal Court to hear all habeas corpus applications other than those specified in s. 17(6) [pertaining to the Canadian Forces] of the Federal Court Act.
The same standard was articulated in Pringle v. Fraser, [1972] S.C.R. 821, at p. 826. That standard of “clear and direct statutory language” is not satisfied in this case and, therefore, the jurisdiction of the Federal Court is concurrent with that of the provincial superior court.
39 As is clear, I have taken a different approach here with respect to s. 44 from that which I took in the previous section regarding an implied grant of authority within the Human Rights Act, read on its own. The reason for this should be made explicit. Many federal Acts do not provide for the exercise of administrative decision-making authority. Where that is the case, the reasoning adopted here with respect to the broad supervisory jurisdiction of the Federal Court is inapplicable.
40 I do not believe that anything in this approach undermines the special position of s. 96 courts, or that there is any likelihood of s. 101 courts acting beyond their constitutional competence. The third requirement of the ITO, supra, test — that the law be a constitutionally valid law of Canada — guarantees that from a doctrinal perspective. From an institutional perspective, I believe the ultimate guarantee is provided by this Court, whose purpose is to serve as the court of appeal for the federal and each provincial superior court system, and to ensure that each remains within its jurisdictional limits. Nor should anything which I have said in the foregoing be taken to undermine the long-established principle that where there is no federal law in a matter of federal jurisdiction, provincial superior courts continue to have jurisdiction by virtue of the doctrine of inherent jurisdiction. Even where federal law has been enacted, but there is no administrative decision-maker subject to the operation of the Federal Court Act or any other grant of jurisdiction to the Federal Court in the Act in question, then s. 96 courts continue to exercise an inherent jurisdiction.
41 Before this Court and in the courts below, it has been suggested that the finely balanced and tailored scheme of remedies contained in the Human Rights Act amounts to an implied ouster of the jurisdiction of the Federal Court. I would agree with McLachlin J. in Brotherhood who, when confronted with similar arguments, found that “[t]hese arguments go not to jurisdiction, but to whether, assuming jurisdiction, it was appropriate to grant the interim injunction” (para. 12). I will turn to that question in due course. Moreover, I would also agree with her observation in that case that an injunctive remedy will not be available where there is an adequate, alternative remedy conferred by statute on some other decision-maker. If there is, then no jurisdiction should be found in the Federal Court under s. 44.
(iv) Section 23(c) of the Federal Court Act
42 At the hearing, the appellant suggested that another ground of jurisdiction could be found in s. 23(c) of the Federal Court Act. Given my finding in the previous section, and the lack of argument or supporting evidence presented by the parties, I consider it prudent to express no opinion on this submission.
Does Federal Law “Nourish” the Grant?
43 The requirement that there be valid federal law which nourishes the statutory grant of jurisdiction serves primarily to ensure that federal courts are kept within their constitutionally mandated sphere. As Wilson J. noted in Roberts, supra, the second and third requirements set out in ITO, supra, of a nourishing body of federal law, and its constitutional validity, go hand in hand (at p. 330):
While there is clearly an overlap between the second and third elements of the test for Federal Court jurisdiction, the second element, as I understand it, requires a general body of federal law covering the area of the dispute, i.e., in this case the law relating to Indians and Indian interests in reserve lands . . . [Emphasis added.]
The dispute over which jurisdiction is sought must rely principally and essentially on federal law. If the dispute is only tangentially related to any corpus of federal law, then there is a possibility that assuming jurisdiction would take the Federal Court out of its constitutionally mandated role.
44 This case presents no such difficulties. The only relevant law that could cover the facts of this case is the Human Rights Act, confined as it is to the federal jurisdiction over telephonic means of communication. The prescription on which the Commission seeks to base the claim for an injunction is solely and exclusively s. 13(1) of the Human Rights Act. That is the normative root of its claim, and it clearly nourishes the statutory grant which I have found is conferred on the Federal Court. Whether an interlocutory power of restraint is conferred by federal law is best dealt with exclusively by the more nuanced and direct jurisprudence relating to the existence of a statutory grant. Once that issue is decided, the nourishment requirement should not be used to subvert the conclusion of that analysis, but rather to ensure that the statutory grant is being exercised in a constitutionally valid manner. That is clearly the case here, and I find that the substantive provisions of the Human Rights Act nourish the statutory grant.
45 The appeal of the decision of the Court of Appeal on jurisdiction is therefore allowed with costs.
Second Question: Was the Exercise of Jurisdiction Appropriate?
46 Rule 469(3) of the Federal Court Rules, C.R.C., c. 663, states:
The plaintiff may not make an application under this Rule before commencement of the action except in case of urgency, and in that case the injunction may be granted on terms providing for the commencement of the action and on such other terms, if any, as seem just.
Considerable argument before this Court and in the courts below was devoted to extrapolating the meaning of this provision based upon the landmark decision in American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396 (H.L.), whose methodology was generally approved by this Court in Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110, at pp. 128-29, and reaffirmed in RJR -- MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, at pp. 332-33. The three-stage test was defined in the latter case as follows (per Sopinka and Cory JJ., at p. 334):
First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.
The appellants sought to fine-tune each of these elements in order to respond to the initial perception that they set the threshold fairly low in a case such as this one. In particular, they recommended that the initial criterion of “serious question to be tried” be raised to a “strong prima facie case”. They also urged that in considering the balance of convenience criterion, the public interest ought to be weighed against the individual interests of the speaker at the balance of convenience stage.
47 In my view, the Cyanamid test, even with these slight modifications, is inappropriate to the circumstances presented here. The main reason for this is that Cyanamid, as well as the two other cases mentioned above, involved the commercial context in which the criteria of “balance of convenience” and “irreparable harm” had some measurable meaning and which varied from case to case. Moreover, where expression is unmixed with some other commercial purpose or activity, it is virtually impossible to use the second and third criteria without grievously undermining the right to freedom of expression contained in s. 2(b) of the Charter. The reason for this is that the speaker usually has no tangible or measurable interest other than the expression itself, whereas the party seeking the injunction will almost always have such an interest. This test developed in the commercial context stacks the cards against the non-commercial speaker where there is no tangible, immediate utility arising from the expression other than the freedom of expression itself.
48 The inappropriateness of the Cyanamid test is confirmed by the jurisprudence relating to injunctions against allegedly defamatory statements, in both England and Canada. In both countries, the Cyanamid test has been rejected for injunctions against dissemination of defamatory statements. Although defamation does not possess precisely the same characteristics as discriminatory hate speech, it is a much closer analogy than restraining commercial activity, even where that commercial activity includes a speech element. Defamation typically involves damage to only one person’s reputation and not an entire group. On the other hand, given the widespread circulation of many defamatory statements in the press and the crystallized damage which a defamatory statement may have, compared with the slow, insidious effect of a relatively isolated bigoted commentary, the two are not necessarily substantially different in terms of the “urgency” requirement. Certainly from the point of view of the rights of the speaker, bigotry and defamation cases both represent potentially low- or no-value speech and are in that sense, extremely similar. It is therefore helpful to look at the approach to injunctions in cases of defamatory speech to determine how “urgency” should be defined in the context of s. 13(1) of the Human Rights Act.
49 In his treatise Injunctions and Specific Performance (2nd ed. 1992 (loose-leaf)), Robert Sharpe says the following, at paras. 5.40-5.70 (pp. 5.2-5.4):
There is a significant public interest in the free and uncensored circulation of information and the important principle of freedom of the press to be safeguarded. . . .
The well-established rule is that an interlocutory injunction will not be granted where the defendant indicates an intention to justify [i.e. prove the truth of] the statements complained of, unless the plaintiff is able to satisfy the court at the interlocutory stage that the words are both clearly defamatory and impossible to justify.
. . . it seems clear that the rule is unaffected by the American Cyanamid case and that the balance of convenience is not a factor.
One of the leading English authorities has a close affinity to the Human Rights Act in that it was a statutory prohibition on certain expression. Herbage v. Pressdram Ltd., [1984] 1 W.L.R. 1160, involved the application of the Rehabilitation of Offenders Act 1974, which had been enacted by Parliament to prevent indefinite reference to an individual’s criminal history, after the individual had served his or her sentence. Based on that specific legislative intention, contended the applicant, an injunction should be issued. Griffiths L.J. (on behalf of himself and Kerr L.J. on a two-judge panel) rejected that approach (at p. 1163):
If the court were to accept this argument, the practical effect would I believe be that in very many cases the plaintiff would obtain an injunction, for on the American Cyanamid principles he would often show a serious issue to be tried, that damages would not be realistic compensation, and that the balance of convenience favoured restraining repetition of the alleged libel until trial of the action. It would thus be a very considerable incursion into the present rule which is based on freedom of speech.
In Rapp v. McClelland & Stewart Ltd. (1981), 34 O.R. (2d) 452, Griffiths J. attempted to define the precise threshold for the granting of an injunction in the following terms (at pp. 455-56):
The guiding principle then is, that the injunction should only issue where the words complained of are so manifestly defamatory that any jury verdict to the contrary would be considered perverse by the Court of Appeal. To put it another way where it is impossible to say that a reasonable jury must inevitably find the words defamatory the injunction should not issue.
. . . American Cyanamid . . . has not affected the well established principle in cases of libel that an interim injunction should not be granted unless the jury would inevitably come to the conclusion that the words were defamatory. [Emphasis added.]
This passage has recently been cited with approval in the Quebec Court of Appeal in Champagne v. Collège d'enseignement général et professionnel (CEGEP) de Jonquière, [1997] R.J.Q. 2395. Rothman J.A., on this point speaking on behalf of Delisle and Robert JJ.A., went on to comment on the constitutional dimension of these common law approaches to the use of the injunctive power (at pp. 2402-3):
With the coming into force of the Canadian Charter and the Quebec Charter, these safeguards protecting freedom of expression and freedom of the press have become even more compelling.
The common law authorities in Canada and the United Kingdom have suggested the guiding principle that interlocutory injunctions should only be granted to restrain in advance written or spoken words in the rarest and clearest of cases — where the words are so manifestly defamatory and impossible to justify that an action in defamation would almost certainly succeed. Given the value we place on freedom of expression, particularly in matters of public interest, that guiding principle has much to recommend it. [Emphasis added.]
These cases indicate quite clearly that the Cyanamid test is not applicable in cases of pure speech and, therefore, the appellants are misguided in presuming that this test does apply. As Griffiths L.J. points out in Herbage v. Pressdram, supra, such a test would seldom, if ever, protect controversial speech. Nor do I believe that the modifications suggested by the appellants sufficiently relieve that problem. The same tests discussed here with respect to restraining potentially defamatory speech should be applied in cases of restraint of potential hate-speech, subject to modification which may prove necessary given the particular nature of bigotry as opposed to defamation. As the question now before us is moot, and as the parties did not address themselves to the appropriate tests, it would be inappropriate to speculate here as to how such distinctions might affect the analysis, if at all.
50 The second factor affecting the exercise of jurisdiction in this case is that the very constitutionality of s. 13(1) is predicated on the absence of remedies of this kind existing in the scheme of the Act. A major issue in Taylor, supra, which followed on the heels of R. v. Keegstra, [1990] 3 S.C.R. 697, where the hate speech provision of the Criminal Code was narrowly upheld, was whether the absence of an intent requirement in s. 13(1) of the Human Rights Act rendered it impermissibly broad under the Oakes criteria. On that point, Dickson C.J. stated (at p. 932):
In coming to this conclusion, I do not mean to say that the purpose of eradicating discrimination in all its forms can justify any degree of impairment upon the freedom of expression, but it is well to remember that the present appeal concerns an infringement of s. 2(b) in the context of a human rights statute. The chill placed upon open expression in such a context will ordinarily be less severe than that occasioned where criminal legislation is involved, for attached to a criminal conviction is a significant degree of stigma and punishment, whereas the extent of opprobrium connected with the finding of discrimination is much diminished and the aim of remedial measures is more upon compensation and protection of the victim. [Second emphasis added.]
The constitutional concerns expressed in the Rapp and CEGEP de Jonquière cases mirror those of Dickson C.J. In my view, those tests would confine the issuance of an injunction to cases where it would be constitutionally justifiable. Elaborations of that test in the context of enforcement of s. 13(1) must be mindful of the guarantee of freedom of expression in the Charter. Given the mootness of the disposition of the appeal on this point, I refrain from expressing an opinion on the application of these principles to this case.
Third Question: Was Liberty Net in Contempt of Court?
51 On this issue, the appellants argue that they were not in contempt on two separate grounds. Their first ground of attack has to do with the validity of the order. As I have found above that the Federal Court had jurisdiction to issue the order, at its highest, the appellants can only suggest that that jurisdiction was exercised wrongly. Such an order is neither void nor nugatory, and violation of its terms constitutes contempt of court. The words of McLachlin J. in Taylor, supra, at pp. 974-75, are both definitive and eloquent on this point:
In my opinion, the 1979 order of the Tribunal, entered in the judgment and order book of the Federal Court in this case, continues to stand unaffected by the Charter violation until set aside. This result is as it should be. If people are free to ignore court orders because they believe that their foundation is unconstitutional, anarchy cannot be far behind. The citizens’ safeguard is in seeking to have illegal orders set aside through the legal process, not in disobeying them.
. . . For the purposes of the contempt proceedings, [the order] must be considered to be valid until set aside by legal process. Thus, the ultimate invalidity of the order is no defence to the contempt citation.
52 The appellants’ second ground of attack is that the contempt order is inapplicable because it seeks to restrain conduct taking place outside of Canada, and, therefore, beyond the territorial jurisdiction of the Federal Court of Canada. This argument is misguided. The violation being impugned here is not the existence of the phone number in the United States without more, but rather the combined effect of that American phone number with the offending messages, and the referral message to that phone number on Liberty Net’s old line. The gravamen of the violation of the order is the communication of the offending messages; that communication takes place by virtue of the advertisement on the Canadian phone line and the broadcast of the message on the American phone line. The former element took place “by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament”, as provided for under s. 13 of the Human Rights Act. As long as at least part of an offence has taken place in Canada, Canadian courts are competent to exert jurisdiction. As La Forest J. articulates the principle in Libman v. The Queen, [1985] 2 S.C.R. 178, at pp. 212-13:
As I see it, all that is necessary to make an offence subject to the jurisdiction of our courts is that a significant portion of the activities constituting that offence took place in Canada. As it is put by modern academics, it is sufficient that there be a “real and substantial link” between an offence and this country, a test well-known in public and private international law . . .
This case does not even test the outer limits of that principle. There was here 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, and this advertisement was done with knowledge of the content of those messages and with knowledge that that content violated the terms of the order of Muldoon J.
53 The defendants knowingly violated the order of Muldoon J. and were properly found to be in contempt of court by Teitelbaum J.
54 The second appeal is dismissed with costs.
The following are the reasons delivered by
//McLachlin and Major JJ.//
55 McLachlin and Major JJ. (dissenting in part) -- We have read the reasons of Justice Bastarache. We agree with him that there is no implied grant of jurisdiction to the Federal Court in the Canadian Human Rights Act, R.S.C., 1985, c. H-6. As well, we agree that the appeal on the contempt conviction should be dismissed. We disagree with his conclusion on s. 44 of the Federal Court Act, R.S.C., 1985, c. F-7.
I. Facts
56 The facts are set out in the decision of Bastarache J.
II. Issues
57 There are two issues in these appeals. The first issue arises out of the original order of Muldoon J. ([1992] 3 F.C. 155) enjoining the Canadian Liberty Net from operating its telephone message service. The second issue concerns the contempt order issued by Teitelbaum J. ([1992] 3 F.C. 504) in response to the relocation of the Canadian Liberty Net to the State of Washington in the United States of America.
A. Did the Federal Court Have Jurisdiction to Issue an Injunction?
58 The Federal Court of Canada is a statutory court that derives all its jurisdiction from the Federal Court Act. The traditional jurisdiction test for that court is set out by McIntyre J. in ITO--International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752, at p. 766:
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.
59 The first test requires a party seeking to bring a matter before the Federal Court to find an express or implied grant of jurisdiction. In this appeal that jurisdiction will be found if at all in the Canadian Human Rights Act or the Federal Court Act. Neither of these statutes provides jurisdiction to the Federal Court of Canada to issue an injunction in aid of the Canadian Human Rights Commission pending the determination of a complaint by a Human Rights Tribunal.
(1) Grant of Authority Under s. 25 of the Federal Court Act
60 The jurisdiction sections of the Federal Court Act exhaustively enumerate all cases over which the Federal Court, Trial Division has jurisdiction. Save for s. 25, it is evident that none of the provisions grant the Federal Court, Trial Division jurisdiction to issue the injunction sought in this appeal.
61 Section 25 reads:
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. [Emphasis added.]
62 Section 25 grants limited original jurisdiction when there is no other court that can hear the matter. Only in the absence of a forum to rule on a justiciable right is the Federal Court able to rely upon s. 25. This appeal does not qualify as such a case. In Brotherhood of Maintenance of Way Employees, Canadian Pacific System Federation v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495, McLachlin J., writing for a unanimous nine-member Court, held that a s. 96 provincial superior court’s inherent jurisdiction allowed it to issue an interim “free-standing” injunction in response to a gap in the Canada Labour Code.
63 Section 25 does not support the appellant’s claim that the Federal Court has jurisdiction because another court, the Supreme Court of British Columbia, has jurisdiction to issue the precise injunction. While concurrent jurisdiction between the Federal Court and provincial superior courts exists in limited circumstances it is inconsistent with our primarily unitary court system. In Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, at p. 728, Dickson J. (as he then was) noted the importance of maintaining this system:
Section 92(14) and ss. 96 to 100 represent one of the important compromises of the Fathers of Confederation....What was conceived as a strong constitutional base for national unity, through a unitary judicial system, would be gravely undermined.
Interpretations that result in concurrent jurisdiction are undesirable as they not only detract from our unitary court system, but inevitably result in forum shopping.
(2) Implied Grant of Authority from the Canadian Human Rights Act
64 The Human Rights Commission position was that a careful examination of the Canadian Human Rights Act reveals an implied grant of statutory authority to issue an injunction. We agree with Bastarache J. that 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. An implied grant of jurisdiction has previously been recognized by the Federal Court of Appeal only when an injunctive remedy was a necessary incident to a Tribunal’s function (New Brunswick Electric Power Commission v. Maritime Electric Co., [1985] 2 F.C. 13). That is not the situation in this appeal.
65 On the contrary, the Canadian Human Rights Act arguably negates the power of the Federal Court to grant injunctions restraining speech before a tribunal finds a contravention of s. 13(1) of the Act. Section 13 is the only provision in the Act dealing with communications. It is restricted to repeated communications by telephone likely to expose persons to hatred or contempt identification on the basis of a prohibited ground of discrimination. This Court upheld s. 13 on the basis that its ambit was narrow: Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892. Parliament has adopted a narrow and measured approach to the question of when human rights concerns can trump the constitutional right of free speech. While we agree with Bastarache J. that these concerns might appropriately be raised at the point of applying for an injunction, this does not negate the point that nothing in the Canadian Human Rights Act suggests that Parliament intended by that Act to confer on the Federal Court the right to restrain speech alleged to violate the Canadian Human Rights Act prior to a hearing by the Commission. On the contrary, the Act suggests that Parliament was willing to trench on free speech only in very particular circumstances.
(3) Section 44 of the Federal Court Act
66 Section 44 was raised by several of the parties as a possible source of jurisdiction for allowing the Federal Court to grant the injunction.
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.
The jurisdictional inquiry is twofold: Does s. 44 grant jurisdiction to issue an injunction and does s. 44 provide jurisdiction to grant “free-standing” injunctions? The key words in s. 44 are “[i]n addition to any other relief that the Court may grant or award”. Two interpretations are possible. The appellant argues that “in addition to” refers to the Federal Court’s independent ability to grant any relief or remedy. In contrast, the respondents argue that “in addition to” should be read as a limiting clause, which only permits the exercise of injunctive power that is “ancillary to” other pre-existing remedies that the Court can grant. We agree with Pratte J.A. and prefer the latter interpretation.
67 In our view, the words “[i]n addition to any other relief that the Court may grant or award” indicate that s. 44 is an ancillary provision, and does not itself grant jurisdiction to the Federal Court, Trial Division. In order to avail itself of s. 44 the Federal Court must possess pre-existing jurisdiction over the subject matter at hand. A similar view was expressed by Rouleau J. in Canadian Union of Public Employees v. Canadian Broadcasting Corp., [1991] 2 F.C. 455, where he held that s. 44 could not independently authorize the Federal Court to grant injunctive relief when the Court was not vested with jurisdiction under the Federal Court Act.
68 Clearly, the Federal Court, Trial Division does not have jurisdiction to hear or determine a complaint based on the Canadian Human Rights Act. That task is exclusively assigned to the Canadian Human Rights Commission. It follows that s. 44 does not clothe the Federal Court with jurisdiction to grant an interlocutory injunction.
69 The structure of the Federal Court Act is indicative of Parliament’s intent with respect to s. 44 and the jurisdiction of the Federal Court. The Act is divided into divisions with each division set off by a bold heading. Section 44 appears within the division of the Federal Court Act headed “Substantive Provisions”, as opposed to the division titled “Jurisdiction of Trial Division”. We are here concerned with an issue of jurisdiction. If the power to grant injunctions in a case such as this is to be found in the Federal Court Act, we would expect to find it in ss. 17 to 26, not in s. 44, which finds its place among the residual housekeeping sections of the Act.
70 As the Federal Court, Trial Division is a statutory court, there is no persuasive reason to interpret s. 44 in a broad manner. Bastarache J. sets out a number of other statutory provisions in his judgment that he reasons aid in ascertaining the proper interpretation of s. 44. Unlike a provincial superior court, the Federal Court’s jurisdiction is limited by the statute and does not include residual or inherent jurisdiction. Wilson J. in Roberts v. Canada, [1989] 1 S.C.R. 322, at p. 331, stated:
The statutory grant of jurisdiction by Parliament to the Federal Court is contained in the Federal Court Act. Because the Federal Court is without any inherent jurisdiction such as that existing in provincial superior courts, the language of the Act is completely determinative of the scope of the Court’s jurisdiction.
71 Clearly, it would be contrary to the explicit language of the Federal Court Act and well-established jurisprudence of this Court to recognize jurisdiction that was not conferred on the Federal Court by Parliament. While the provincial superior courts and the Federal Court are both created by statute, the inherent jurisdiction of the s. 96 superior courts is an important distinguishing feature. Their inherent or residual nature was recognized in Valin v. Langlois (1879), 3 S.C.R. 1, and by the Privy Council in Board v. Board, [1919] A.C. 956, and in 1982 Estey J. in Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, at pp. 326-27, stated:
The provincial superior courts have always occupied a position of prime importance in the constitutional pattern of this country. They are the descendants of the Royal Courts of Justice as courts of general jurisdiction. They cross the dividing line, as it were, in the federal-provincial scheme of division of jurisdiction, being organized by the provinces under s. 92(14) of the Constitution Act and are presided over by judges appointed and paid by the federal government (sections 96 and 100 of the Constitution Act).
72 The appellant is not prevented from seeking an injunction. The only question is: where does it find jurisdiction? It is clear from the Brotherhood, supra, decision that a provincial superior court has the jurisdiction to issue an injunction in the present circumstances.
73 Given the result we have reached it is not necessary to determine the ability of the Federal Court to grant “free-standing” interim injunctions. We would dismiss this appeal on the ground that the Federal Court does not have jurisdiction to grant an injunction under the circumstances of this case.
B. Was Liberty Net in Contempt of Court?
74 The appellants were held in contempt of court by Teitelbaum J. for violating the injunction issued by Muldoon J. McAleer and Canadian Liberty Net argued that if the injunction was issued without jurisdiction it was void, and therefore the conviction should be set aside. We disagree and concur in the result of Bastarache J. and would dismiss the appeal.
Appeal with respect to jurisdiction allowed with costs, McLachlin and Major JJ. dissenting. Appeal with respect to finding of contempt dismissed with costs.
Solicitors for the appellant/respondent the Canadian Human Rights Commission: William Pentney and Eddie Taylor, Ottawa.
Solicitor for the respondents/appellants Canadian Liberty Net and Tony McAleer: Douglas H. Christie, Victoria.
Solicitor for the intervener the Attorney General of Canada: George Thomson, Ottawa.
Solicitor for the intervener the League for Human Rights of B’Nai Brith Canada: David Matas, Winnipeg.