Canadian Human Rights Commission,

344 Slater Street,

8th Floor,

Ottawa, Ontario,

K1A 1E1.

BY FAX: (613)-993-3089

Attention: Mr. Rene Duval, Senior Counsel

re: Citron et al. versus Zundel

Dear Mr. Duval:

In light of today's decision by Mr. Justice Campbell in judicial review T-1411-98, finding Reva Esther Devins tainted by a reasonable apprehension of bias in her role as a member of the Tribunal empowered to inquire into complaints against Ernst Zundel, we urge the adjournment of the Tribunal sine die.

To recap: From 1987 to 1993, Tribunal Member Reva Esther Devins had been a member and eventually acting Vice Chairman of the Ontario Human Rights Commission. During her tenure, on May 13, 1988, the commission issued a strongly worded press release cheering the conviction (subsequently overturned by the Supreme Court of Canada) of respondent Ernst Zundel. "The Ontario Human Rights Commission commends the recent court ruling that found Ernst Zundel guilty of publishing false statements denying the Holocaust. ... Said Chief Commissioner Raj Anand: 'We applaud the jury's decision since it calls for sanctions against a man responsible for contradicting the truth of the suffering experienced by the Jewish people." This case had involved a complaint by Sabina Citron, one of the complainants in this present case and had centred on the publication Did Six Million Really Die?, which is also one of the documents cited in this hearing by the Canadian Human Rights Commission.

In his ruling, Mr. Justice Campbell was emphatic: " I believe the applicant has a legitimate complaint. ... The taint caused by the press release extends to the present Tribunal

The judgement by Mr. Justice Campbell entirely impunes the fairness of the Tribunal proceedings thus far. As evidence of this, he granted the respondent Ernst Zundel's judicial review applications T-1154-98 and T-1155-98, which sought respectively to overturn Tribunal rulings that truth was no defence and that proposed witness Dr. Alexander Jacob could not be qualified.

By the logic of Mr. Justice Campbell's decision, all other rulings made while Ms Devins was a Tribunal member are thus tainted with bias and can be challenged successfully by judicial review.

Jurisprudence seems emphatically to hold , due to the reasonable apprehension of bias on the part of Ms Devins, that the entire proceedings of the Tribunal are null and, should, therefore, be discontinued.

In support of this argument, we cite the following:

1. In Diamond Construction (1961) Ltd. v. the Construction and General Labourers, Local 1079, the New Brunswick Supreme Court, Appeal Division, in a July 11, 1973 ruling, quashed an order of certification of the union, because of a denial of natural justice, as there was a reasonable apprehension of bias on the part of one of the board members. The court held, inter alia: "All that need be shown is a reasonable apprehension of bias. The fact the alleged disqualification involves only one member of the Board which was unanimous in certifying the applicant trade union is immaterial. In The Queen v. Huggins and Another [1895] i Q.B. 563, it was held that the conviction of the defendant by six justices should be quashed on certiorari because one of them, though having no actual bias against the defendant, was a member of a small class of persons for whose protection the proceedings were taken thereby creating 'a reasonable apprehension of bias.'" (p.561)

2. In Canada (Canadian Human Rights Commission) v. Canada (Canadian Human Rights Tribunal) et al, the Federal Court of Canada [Trial Division] ruled, July 11, 1990 to allow the Commission's application quashing the Tribunal's ruling on the basis of a reasonable apprehension of bias on the part of one of the members of the Tribunal. The Court held: "No reasonable apprehension of bias has been raised directly against the other members of the Tribunal, but the jurisprudence is clearly to the effect that the decision of a Tribunal consisting of more than one member will be vitiated if the circumstances establish a likelihood that any member ... participating in the decision is biased in favour or against one of the parties." (Administrative Law Reports, p.244)

3. In Linair Electric Ltd. v. I.B.E.W., Local 1852, Mr. Justice Hamilton of the Nova Scotia Supreme Court, in a March 10, 1997 ruling, upheld an application for judicial review and granted a new hearing after the chairman of a Construction Industry Panel of the Labour Relations Board made comments that gave rise to a reasonable apprehension of bias and then resigned. Mr. Justice Hamilton in his ruling held: "The Union argued that if I found a reasonable apprehension of bias existed, I should only quash the first Panel's decision on jurisdiction issues, not the decision of the second Panel on the merits. I do not agree and find that both decisions should be quashed. The jurisdiction issues and the merit issues are interdependent and constitute one proceeding. ... Given the importance of the principle of natural justice that the adjudicator be and be seen as being disinterested and unbiased, I find both orders should be quashed., (Administrative Law Reports, p.239-240)

4. Perhaps most compelling of all is the decision by the Supreme Court of Canada in Newfouldnad Telephone Co. Ltd. v. Board of Commissioners of Public Utilities, March 5, 1992, which held that the decision rendered by a Board was void because of a reasonable apprehension of bias on the part of one of its members. Most instructively, Canada's highest Court ruled: "Everyone appearing before administrative boards is entitled to be treated fairly. It is an independent and unqualified right. ... It is impossible to have a fair hearing or procedural fairness if a reasonable apprehension of bias has been established. If there has been a denial of a right to a fair hearing, it cannot be cured by the tribunal's subsequent decision. A decision of a tribunal which denied the parties a fair hearing cannot be simply voidable and rendered valid as a result of a subsequent decision of the tribunal ... The damage created by an apprehension of bias cannot be remedied. The hearing, and any subsequent order resulting from it, is void."

The Supreme Court ruling is clear and emphatic. As applied to this case, a resonable apprehension of bias has been found against Member Devins. The entire Tribunal and the proceedings are irredeemably tainted and are void. Therefore, in our submission, the only reasonable and fair course is to halt the proceedings. We urge you to direct the remaining Tribunal member Claude Pensa to resign, as was the practice in the Mills case, or that you withdraw the complaints and end this obscene waste of taxpayers' money, to say nothing of the waste of the resources of the respondent.

Sincerely yours,

Paul Fromm

Director