[1]            FINCH, C.J.B.C.: The issue on this appeal is whether the learned chambers judge erred in concluding that the petitioner, Mr. Collins’ challenge to the constitutional validity of s. 7(1)(b) of the Human Rights Code, R.S.B.C. 1979, c. 210, was rendered moot following his death.  Mr. Collins was the subject of a complaint under s. 7(1)(b) of the Code when he wrote, and his then employer, the North Shore News published, a series of columns concerning Jewish persons and the holocaust.  Those columns, or some of them, became the subject of two complaints, one by the Canadian Jewish Congress, and one by Mr. Harry Abrams.  They alleged that the publications violated s. 7(1)(b) of the Code on the grounds that they were likely to expose Jewish persons to hatred and contempt.  The complaint by the Congress with regard to one article was dismissed.  However, Mr. Abrams’ complaint in respect of four articles, was upheld on the basis that the articles, taken together, had the effect of “reinforcing some of the most virulent forms of anti-semitism”.

[2]            Upon finding a violation of s. 7(1)(b), the Tribunal issued various orders, including a compensation order and a cease and desist order.  The latter is in these terms:

That the Respondents Doug Collins and the North Shore News cease publishing statements that are likely to expose Jewish persons to hatred and contempt and refrain from committing the same or a similar contravention;

[3]            Such an order is mandatory under s. 32(2)(a) of the Code where the Tribunal finds a complaint to be justified.

[4]            In his lifetime, Mr. Collins could not have re-published the four articles, or other similar articles, without breaching this cease and desist order.  He sought to challenge the validity of the order by attacking the constitutional validity of s. 7(1)(b) of the Code, the provision under which the order was made.

[5]            Mr. Collins died on 29 September 2001.  The Attorney General then applied for an order declaring his constitutional challenge to be moot.  Mrs. Collins, who inherited copyright to the four articles at issue in the Abrams complaint, sought to continue Mr. Collins’ challenge on the grounds that as the owner of the intellectual property in Mr. Collins’ writings, she stood in the shoes of Mr. Collins for the purposes of his constitutional challenge.

[6]            The learned chambers judge found that Mrs. Collins owned the intellectual property in the columns, but she did not accept the argument that this conferred upon her the right to proceed with a challenge based on the alleged violation of Mr. Collins’ constitutional rights.  The chambers judge also held that Mrs. Collins could not meet the test for public interest standing, which was the only basis on which she could have proceeded with the challenge of the impugned provision of the Code.

[7]            Mrs. Collins contends that the learned chambers judge erred in finding the constitutionality of s. 7(1)(b) to be moot as a result of Mr. Collins’ death.

[8]            The Attorney General maintains that the chambers judge was correct in holding that issue to be moot.

[9]            I do not propose to review the history of these proceedings in the Human Rights Tribunal, or in the courts, at length.  That history is not in dispute, and is fully set out in the reasons of the learned chambers judge at para. 2 of those Reasons.

[10]        It is sufficient here to record that the constitutionality of s. 7(1)(b) was addressed by the Tribunal member Tom Patch in his reasons pronounced 30 November 2001.

[11]        He held that the constitutional issues were not moot (see para. 25 of his decision).

[12]        In his opinion, s.7(1)(b) constituted a prima facie infringement of Mr. Collins’ right to freedom of expression under s. 2(b) of the Charter.  However, he held that the infringement is demonstrably justifiable in a free and democratic society under s. 1 of the Charter.

[13]        As the North Shore News had already compensated Mr. Abrams, and published a summary of the Tribunal’s decision, the only aspect of the Tribunal’s 22 February 1999 order that was not spent at the time of Mr. Collins’ death was the cease and desist order issued against him and the North Shore News.  At the time of Mr. Collins’ death, the North Shore News had abandoned any challenge to the validity of the Tribunal’s cease and desist order.  The Attorney General then brought its application for an order dismissing the petition on the grounds that Mr. Collins’ death had rendered his challenge to the validity of the Tribunal’s order, including the cease and desist provision, moot.

[14]        The question before the learned chambers judge was whether Mrs. Collins, the executrix and sole beneficiary of the estate of Mr. Collins, had a sufficient interest in the cease and desist order to justify a continuation of this constitutional challenge.  The learned chambers judge found that Mrs. Collins, as the sole beneficiary of Mr. Collins’ estate, became the owner of her late husband’s intellectual property in the four columns at issue in Mr. Abrams’ Human Rights complaint.  However, she declined to hold that the inheritance of a copyright interest in Mr. Collins’ intellectual property conferred on Mrs. Collins a legal right to proceed with Mr. Collins’ constitutional challenge.  She held:

[33]  The factual underpinning for the judicial review application was the alleged breach of Mr. Collins’s constitutional and other rights as a result of the Tribunal proceedings and Order.  Such rights are personal and do not pass by succession: Wilson and Stinson, supra.  The comments of the Ontario Court of Appeal regarding the application for habeas corpus in Re Caddedu, supra, at 485 are apposite:

The fact remains that this is not a constitutional reference, in which the advice of the court is sought by one or other of the governments.  It is litigation between the Crown and one of its citizens, and the citizen is now dead.  Whether his parole was validly suspended and revoked in 1982 can have no practical effect so far as he is concerned.

[34]  While Ms. Collins may now have a proprietary interest in the four columns, she has not stepped into Mr. Collins’s shoes in any other relevant respect.  She was not a party to the complaint proceedings, nor to the judicial review proceedings prior to her husband’s death; indeed, no basis was described to me on which she could have been a party.

[35]  I conclude that the death of the petitioner Doug Collins makes these proceedings moot.

[15]        On this appeal, counsel for the appellant maintains that the chambers judge erred in finding that Mr. Collins’ petition was moot given that Mrs. Collins inherited Mr. Collins’ intellectual property rights and therefore had an interest in possibly re-publishing those columns.  The appellant also submits that as the new owner of the property at issue in the Abrams complaint, Mrs. Collins must be seen as indistinguishable from Mr. Collins for the purposes of the constitutional challenge in relation to that property.

[16]        I am unable to accept these submissions.  The cease and desist order granted by the Human Rights Tribunal bound only Mr. Collins and the North Shore News.  As a statutory body, it had no jurisdiction to make an order binding on any person not lawfully before it.

[17]        The order of the Tribunal, including the cease and desist provision, did not bind Mrs. Collins after her husband’s death anymore that it bound her before his death.  The fact that Mrs. Collins inherited her husband’s intellectual property does not alter the effect of the order.  If Mrs. Collins or anyone else were to have purchased copyright from Mr. Collins before his death, it would not follow that the cease and desist order would run with the intellectual property.  The order is an in personam remedy attaching to the person or body against whom it was made.  The Tribunal could not bind Mrs. Collins by virtue of her inheritance.  Nor can Mrs. Collins acquire a right to commence or to continue a constitutional challenge based on the violation of Charter rights belonging to someone other than herself.  At best, in order to participate in a civil challenge in relation to an infringement of the constitutional rights of a third person, it is necessary to meet the test for public interest standing.

[18]        The learned chambers judge considered the question of whether Mrs. Collins could meet the test for public interest standing at paras. 36-77 of her reasons.  She concluded that Mrs. Collins could not meet the test.  I can see no reason to disagree with her conclusions on that account.

[19]        The learned chambers judge finally considered whether she should exercise her discretion to hear the constitutional issue even though she considered it to be moot (see paras. 39-65 of her Reasons).  She applied the relevant law and considered the relevant factors.  She concluded that a decision on the mootness issue “Would have no practical effect on the rights of the existing parties and limited practical effect on Betty Collins if she were added as a party”.

[20]        She held that considerations of judicial economy weighed against continuing the proceedings.  And she considered that it would be inappropriate for the court to decide the constitutional issue, when it was not necessary to do so.  She concluded:

[64]  In summary, because of the death of Doug Collins, the sole petitioner in these proceedings, there is no longer a controversy affecting the rights of the parties.  Although the proceedings could continue through the procedural device of joining Betty Collins as a party or intervener, it is not appropriate to grant such an order because: the proceedings relate to alleged breaches of Mr. Collins’s constitutional rights, which were personal to him; continued proceedings would lack a specific factual context; nothing prevents live disputes arising which would allow other persons to challenge s. 7(1)(b) of the Human Rights Code; the Supreme Court of Canada in Taylor, supra, has upheld legislation with very similar wording to that of a core element of the impugned provision; and the proceedings here, although they have stretched over many years, have not progressed beyond the initial stages of arguing the constitutional issues on their merits.

[21]        In my respectful view, there is no basis on which this Court could lawfully interfere with the chambers judge’s exercise of discretion.  She was correct in her determination that the appeal to her was moot, and that the Attorney General’s application to dismiss the petitioner’s application for judicial review should be allowed.

[22]        I would dismiss the appeal.

[23]        LAMBERT, J.A.: I agree.

[24]        HOLLINRAKE, J.A.: I agree.

[25]        FINCH, C.J.B.C.: The appeal is dismissed.

“The Honourable Chief Justice Finch”