Motion to Stay Proceedings in Abrams v. RadicalPress.com
HOOKED WALL HANGING OF “THE RADICAL” BY MOLLY MURPHY, 2000
_________________________________________________________________________
Harry Abrams
and
The League For Human Rights of B’nai Brith Canada
v.
Arthur Topham
and
RADICALPRESS.com
File Number: T1360/9008
MOTION TO STAY PROCEEDINGS
JULY 30, 2009
Arthur Topham
Pub/Ed
The Radical Press
4633 Barkerville Hwy
Quesnel, B.C. V2J 6T8
Email: radical@radicalpress.com
July 30, 2009
Nancy Lafontant
Registry Officer
Canadian Human Rights Tribunal
Nancy.Lafontant@chrt-tcdp.gc.ca
Dear Nancy Lafontant,
RE: Harry Abrams and the League for Human Rights of B’nai Brith Canada v. Arthur Topham and the RadicalPress.com
File Number: T1360/9008
Please find enclosed a Notice of Motion to Stay proceedings in the above complaint case.
In the interest of all parties in this complaint and with due respect for the judicial system of Canada I feel it is my democratic duty that I ask the Tribunal to consider staying the proceedings in this case. I do so with good reasons and not merely as an attempt to circumvent any of the concerns of the parties involved.
Based upon all the effort thus far expended by the parties in proceeding with this complaint and the fact that it continues to proceed at a pace which would indicate it may extend some months in advance of the present, it is my reasoned opinion that judicial economy would demand that a question, such as this complaint comprises and one which is basically synonymous with that of the Warman v. Lemire case, should not be litigated while the same question is under reserve in a forum of concurrent jurisdiction.
Analysis of the constitutional issue requires a factual foundation, which demands that the proceedings not be bifurcated. To proceed in part saves nothing and is in fact very costly.
It would therefore be unjust and unreasonable to put myself, Arthur Topham, the Respondent, to the needless expense of defending a complaint which may have been brought under an unconstitutional law.
With due consideration to the fact that this complaint has now interfered with and prevented me from earning a living for over a year and a half because of the demands for legal research and the fact that I am unable to afford legal counsel, I feel it behooves the Tribunal to give their reasoned attention to the hardship currently being imposed upon the Respondent to fulfill his obligations when there exists another reserved decision which might dispose of the matter.
As an example of a case which illustrates the pragmatic correctness of my position I would cite the judgment of April 2, 2007 by the Honourable Madam Justice Heneghan in that of Warman v. Kulbashian Tribunal File No. T1073/5405 in the Federal Court; one which stayed a judicial review pending the outcome of Warman v. Lemire.
In that case the first two grounds for the application for judicial review were:
(a) That Sections 13(1)(2)(3) and 54(1), (1.1) of the Canadian Human Rights Act are a violation of subsections 2(a) and (b) and Section 7 of the Canadian Charter of Rights and Freedoms are not saved by Section 1 thereof, and such are of no force and effect pursuant to Sections 24(1) and 52(1) of the Constitution Act, 1982;
(b) That Section 13 and 54(1), (1.1) of the Canadian Human Rights Act is a violation of Subsections 1(d) and (f) and Section 2 of the Canadian Bill of Rights and is thereby rendered inoperative;
It is also evident that in the complaint brought against myself by Harry Abrams and the League for Human Rights of B’nai Brith Canada I have also filed a Constitutional Challenge to Section 13 of the Canadian Human Rights Act based upon the same grounds as those described above in Warman v. Kulbashian.
In the case of Warman v. Kulbashian cited above and as stated by Madam Justice Heneghan in her decision:
VI. Discussion and Disposition
[40] As alternative relief, the moving parties request that this proceeding be stayed, pending the disposition by the tribunal hearing the Lemire case. In that case, the constitutionality of subsection 13(1) of the Act has been squarely put in issue.
[41] Subsection 50(1) of the Federal Courts Act authorizes this Court to stay proceedings, in the exercise of its discretion. Subsection 50(1) provides as follows:
50.(1) The Federal Court of Appeal or the Federal Court may, in its discretion, stay proceedings in any cause or matter
(a) on the ground that the claim is being proceeded with in another court or jurisdiction; or
(b) where for any other reason it is in the interest of justice that the proceedings be stayed.
[42] In my opinion, a stay of the present proceedings is appropriate on the grounds that the sole issue raised in the Applicants’ Amended Notice of Application is currently the subject of adjudication before a tribunal in the Lemire matter. [underlining is mine. A.T.]
[43] In WIC Premium Television Ltd. v. General Instrument Corp., [1999] F.C.J. No. 862 (F.C.T.D.) (QL), the Court addressed the factors to be considered in granting a stay when there are proceedings before another court or in another jurisdiction. These criteria include the risk of inconsistent findings, excessive costs and the capacity of the court to grant the complete or comprehensive remedy.
[44] These factors are relevant in the present case. The tribunal hearing the Lemire matter is authorized to adjudicate upon the constitutional validity of subsection 13(1) of the Act and that disposition, including any subsequent application for judicial review, will be available for the guidance of the Court when the current matter proceeds. [underlining is mine. A.T.]
[45] A stay of the Court proceedings is a more appropriate disposition at this time than granting an order to convert this application into an action, pursuant to section 18.4(1) of the Federal Courts Act. In Macinnis, the Federal Court addressed the circumstances when an application should be converted to an action and concluded that consideration should be given to using subsection 18.4(2) only when the facts cannot be satisfactorily established or weighed through affidavit evidence. The test is whether such evidence will be inadequate, not whether trial evidence might be superior.
[46] In this proceeding, I am not persuaded that the conversion of this application into an action is justified.
[47] Accordingly, the motion is allowed, on the basis of subsection 50(1) of the Federal Courts Act<