Federal Court of Appeal Finds Tribunal Orders Hold Same Weight as Court Orders

While the Supreme Court of Canada determined in Mowat that the Canadian Human Rights Tribunal (CHRT, the “Tribunal”) does not have the authority to award costs, a recent decision of the Federal Court of Appeal has confirmed other powers of the Tribunal, finding that orders issued by the Tribunal carry the same weight as court orders and can lead to findings of contempt.

In Canada (Canadian Human Rights Commission) v. Warman, a majority of the Federal Court of Appeal found that Mr. Termaine was in contempt for having defied an order of the Tribunal.

In 2004, Richard Warman, a well-known human rights activist, filed a complaint against Terry Tremaine under section 13 of the Canadian Human Rights Act, (the “Act”) alleging that Mr. Tremaine had engaged in discriminatory practices on the grounds of religion, national or ethnic origin and color, by way of comments he published on Internet websites.

The Tribunal found that Mr. Tremaine’s messages were likely to expose persons and, specifically, non-white minorities, to hatred and contempt and that, as such, the comments constituted a discriminatory practice under subsection 13(1) of the Act. A cease and desist order and a fine of $4,000 were issued by the Tribunal.

A certified copy of the order was filed with the Federal Court in February of 2007. However, Mr. Termaine was not put on notice that this filing had occurred. Many of his messages remained on the Internet, and additional messages were also posted.

The Federal Court had to decide whether Mr. Tremaine was in contempt of the Tribunal’s order. The Court determined that he was in contempt of the order but that, since contempt could only be pronounced for breach of an order of the Federal Court, Mr. Tremaine could not be found guilty of any conduct prior to March 2009, the time he became aware of the order having been registered with the Court.

On appeal, the Federal Court of Appeal found that no legal principle restricts the use of contempt powers to orders issued by superior courts and that, although Tribunal orders may be different than court orders, they are nevertheless enforceable by superior courts through contempt proceedings.

The Court of Appeal determined that there is only one order, that of the Tribunal, which can be enforced by the Federal Court. As a result, the Court of Appeal found that the Federal Court judge had erred in finding that a violation of the Tribunal’s order could not result in a finding of contempt. Thus, the Federal Court of Appeal held that Mr. Termaine was in contempt of the order from February 2nd, 2007 onwards, and the case was sent back to the Federal Court Judge for sentencing.

The Federal Court of Appeal’s decision thus stands for the proposition that an order by the Canadian Human Rights Tribunal can be enforced in the same way as a court order.