Respondent Request for Adequate Time to Answer
Lubomyr Prytulak to Sherri Helgason 22-Dec-2003
"As Sol Littman never produced any of the five above documents, it may be supposed that they were fabrications in the stream of hate propaganda flowing from the notorious Simon Wiesenthal Center." — Lubomyr Prytulak
Director, Investigations Branch
Canadian Human Rights Commission
344 Slater Street
Ottawa, ON K1A 1E1
Re: Request for adequate time to answer, File no. 20031527.
Dear Ms Helgason:
At issue is the Canadian Jewish Congress (CJC) request that the Canadian Human Rights Commission (CHRC) order the removal of the entire Ukrainian Archive (UKAR) web site from the Internet. However, UKAR occupies 197.53 mb of computer memory. If one book page occupies 2.09 kb of memory, then UKAR occupies 94,512 pages. If one volume occupies 500 pages, then UKAR occupies 189 volumes. To evaluate and defend the contents of 189 volumes of material by 23-Dec-2003 — as proposed by Ms Suzanne Best in her letter to Lubomyr Prytulak dated 27-Nov-2003 and received 28-Nov-2003 — is an impossibility. Rather, preparation of an adequate reply to the Canadian Jewish Congress complaint will require approximately 60 days past the proposed date, which is to say will require until 23-Feb-2004.
From the Canadian Jewish Congress, there can be no objection on the ground of urgency. The most common source of the material that the CJC complains of is the Prytulak essay, What I Found in my Pantry at www.ukar.org/tax02.html, which was first published in the interval December 1999 to January 2000, and which therefore approaches four years old. The quote at the bottom of the CJC complaint's p. 7 discusses a Patrick Martin article in the 30-Apr-1998 Globe and Mail, such that if the UKAR discussion was written immediately after the Globe article was published, the discussion would be approaching six years old. The most recent material complained of can be found at the top of p. 7, beginning with "my experience." It was published 22-Jul-2000, and so will be four years old only this summer. Although some of the material quoted is undated, all of it appears to fall within approximately the four to six year age range.
At the same time, the Canadian Jewish Congress has been aware of the complained-of material from the outset.
One piece of evidence supporting this conclusion is that Prytulak corresponds frequently with senior Canadian Jewish Congress representatives, acquainting them with UKAR concerns, citing UKAR-published discussion of these concerns, and inviting dialogue. Thus, Prytulak has written Irving Abella (National Honourary President) nine letters between 26-Apr-2000 and 25-Jul-2002 (linked at www.ukar.org/abella.html); has written Bernie Farber (Executive Director) three letters between 29-Apr-2002 and 13-May-2002 (www.ukar.org/farber.html); and has written Moshe Ronen (Chair Board of Governors) sixteen letters between 15-Mar-2000 and 23-Apr-2001 (www.ukar.org/ronen.html). These three senior CJC representatives — Abella, Farber, and Ronen — must have been aware that the letters they were receiving were being simultaneously published on UKAR, because the letters were delivered to them as HTML documents, with their Internet URLs printed in footers on every page.
Further supporting the thesis that the Canadian Jewish Congress has been aware of the material complained of from the outset is evidence that the Canadian Jewish Congress monitors and archives UKAR continuously. Specifically, the Canadian Jewish Congress complaint draws attention to two errors within quoted UKAR material by attaching "[sic]" to them: first the UKAR misspelling "metasticized" (middle of p. 6 of the complaint), and second the UKAR writing "immigrate" where "emigrate" would have been correct (bottom of p. 7). However, these two errors had been noticed by Prytulak at the time of first publication years ago, and had been immediately corrected. Thus, some at least of the CJC quotations in its complaint are not drawn from what is currently on the Internet, they are taken from UKAR first drafts that the CJC must have noticed and archived as they appeared, and which the CJC prefers to cite today because of the two errors.
Thus, as the Canadian Jewish Congress has acquiesced to the complained-of material remaining on public display for intervals approaching four to six years, the CJC cannot argue today that removal of this material is urgent.
It would be a misuse of opportunity to have presented the above data on Canadian Jewish Congress untimeliness without drawing further conclusions, some of which flow from a consideration of relevant law, and which consideration serves as a reminder of the distaste with which the law views the dragging before the courts of perceived slights that have gone stale:
Placing material on the Internet, via a website, where it may be accessed by a large audience, constitutes broadcasting within the meaning of the Libel and Slander Act. The plaintiff discovered the libel on July 15, 2001. Had she served her notice of claim within six weeks of that date pursuant to s. 5(1) of the Act, and commenced a claim within 3 months of July 15 as required by s. 6, she could have claimed for any libel broadcast or published by the defendant against her for one year before the action commenced. This she did not do.
Bahlieda v Santa (2003), 64 O.R. (3d) 599, from headnote p. 601
In view of the above, the Canadian Jewish Congress writing "ongoing" on the complaint form under "Date of Alleged Conduct" would if offered in a court of law be considered evasive and inadequate, as what would be required would be the date of first CJC discovery of the complained-of material. The common law does not recognize that a web publication can constitute an "ongoing" libel. Rather, the notice and limitation periods run only once, from the time of plaintiff's first discovery.
The Canadian Human Rights Act (CHRA) § 41(1)(e) echoes the law's disapproval of untimely complaints by also specifying a cutoff interval, but here the more indulgent interval of one year:
In further conformity with common law, the CHRA makes no provision for "ongoing" hate messaging, as evidenced by the words "ongoing," "continuous," and "continuing" never appearing in the Act.
41. (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
(a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available;
(b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act;
(c) the complaint is beyond the jurisdiction of the Commission;
(d) the complaint is trivial, frivolous, vexatious or made in bad faith; or
(e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.
CHRA § 41(1)(e) allowing for a "longer period of time" to complain must be understood to extend time to complain beyond one year only for good cause shown. If time could be extended without good cause shown, this would be equivalent to setting up a limitation period of one year along with an invitation to ignore it, which would be equivalent to setting up no limitation period at all. In the instant CJC v Prytulak proceedings, the extension of time to complain to sometimes almost four years, and at other times to almost six years, is egregious and deviates from the spirit and the letter of both the common law and the CHRA, and no good cause for such excess has been shown, and none can be imagined, as the Canadian Jewish Congress did not merely sleep on its rights over the years, but rather it actively resisted replying to Prytulak's many invitations to dialogue, and it refused to disseminate any information through any channel in any attempt to contradict or balance or qualify or correct Prytulak's writing.
The normal course in a free and open society when one is confronted with statements that are inaccurate or unfair is to answer them, to critique them, to rebut them, to refute them, to lay out one's own opposite evidence and arguments before the world. This is the process that leads to truth, and that has served Canada well, and that indeed forms a central pillar of Western civilization. The alternative route chosen by the Canadian Jewish Congress is neither normal nor advisable; it is totalitarian. The Canadian Jewish Congress route is, when addressed on issues of public concern, to maintain silence for four years, or six years, and to break silence only to demand that the government prohibit the issues broached from being discussed.
Although the age of the complained-of UKAR material is discussed here to demonstrate the lack of urgency of the Canadian Jewish Congress's complaint, it also raises the question of why the CHRC has allowed the CJC complaint at all, or why it does not dismiss it this day. When Prytulak negotiated on 01/02-Dec-2003 the commencement of his own complaint of CJC hate messaging, CHRC Intake Officer Kessie Joseph demanded a date of discovery of the offending material, and refused to accept Prytulak's argument that he should be allowed to describe the CJC hate messaging as "ongoing" on the ground that the CJC had been allowed to describe the alleged UKAR hate messaging as "ongoing." Rather, Kessie Joseph demanded that Prytulak supply the date on which he had encountered the hate messaging that he wished to complain of, and demanded that Prytulak verify its continued existence the day following. Prytulak asks the Canadian Human Rights Commission to explain why it permits the Canadian Jewish Congress to brush aside common law, brush aside the CHRA, and to blindfold the sharp eyes of a CHRC Intake Officer at the time that the CJC writes the impermissible "ongoing" on the CHRC complaint form, and Prytulak further asks the Canadian Human Rights Commission why Kessie Joseph did not allow Prytulak to do what some other Intake Officer, or perhaps Ms Joseph herself, had allowed the CJC to do.
And while CHRA § 41 is at hand for consultation above, it may be helpful to point out that the Canadian Jewish Congress fails also to meet the test of CHRA § 41(1)(a), as the CJC always has had an avenue for redressing its grievance which it has failed to travel — the avenue which begins by informing respondent in what way his publication is perceived to be inaccurate or unfair or inadvisable, which the Canadian Jewish Congress could reasonably have expected to produce amelioration in view of such long-standing UKAR solicitations as the following:
UKAR is Interested in Getting it Right
All positions taken on the Ukrainian Archive are based on the best evidence available to me at the time of writing, and thus must be considered provisional and susceptible to modification upon the acquisition of new evidence. Any users who are able to correct errors or to provide evidence that calls for a revision of any position taken on the UKAR site will be appreciated. www.ukar.org/infolink.html#right
Or, below is an example of a UKAR special offer, this one to Sol Littman, Canada's foremost Nazi hunter, then Director of the Simon Wiesenthal Center in Toronto, in reference to four documents that Littman claimed were in his possession and were damaging to the Ukrainian WW II Galicia Division. This particular UKAR offer was not only included in the Prytulak-to-Littman letter itself, but was featured in large, bold, red font above the letter, which would be as hard for CJC researchers to miss in their monitoring of UKAR as it is hard for you to miss in your reading of this letter:
I promise you that upon receipt of any of the above documents, I will publish them on the Ukrainian Archive complete and unedited on the same day that I receive them, and without regard to how damaging they may be to the Galicia Division. www.ukar.org/littma14.html
And then with respect to a fifth document, Prytulak renews his offer:
As I am interested in publishing the truth about the Galicia Division, I renew my offer of instant and full publication which I have previously extended in my letter to you of 09Oct99 with respect to four other documents in your possession. In the present case, I ask you to send me a photograph of Galicia Division recruits boarding a train on which are chalked "cartoons of Jews hanging from nooses," and I will post this photograph on the Ukrainian Archive the same day. www.ukar.org/littma15.html
As Sol Littman never produced any of the five above documents, it may be supposed that they were fabrications in the stream of hate propaganda flowing from the notorious Simon Wiesenthal Center, and which would have been added to the list of Wiesenthal hoaxes described in the Prytulak letter of 20-Dec-2003 to Mary M Gusella, had that list attempted to go beyond illustrative to comprehensive. It may be noted further that as the Canadian Jewish Congress defines "Jewish-holocaust denial" as doubting any particular of the Jewish holocaust, then Prytulak's demanding that the Simon Wiesenthal Center produce the five above documents certainly expresses doubt — in fact expresses incredulity — concerning five or so details of the Jewish holocaust and so must be considered as "Jewish-holocaust denial," and as Prytulak publishes his incredulity on the Internet, he becomes liable to Canadian Human Rights Commission prosecution, and that as Prytulak is forbidden to invoke truth as his defence, then the fact that the Simon Wiesenthal Center failed to produce the documents is not to be taken into account.
But this line of thinking is peripheral to the more central concerns of the instant letter, the proposition defended at the moment being that Prytulak has always broadcast a generous readiness to publish opposing — and even hostile, and even damaging-to-Ukrainians — views, and which readiness also obviously provides a path for redressing grievances, a path which the Canadian Jewish Congress has consistently spurned to tread, and which spurning constitutes a Canadian Jewish Congress failure to meet the test of CHRA § 41(1)(a) above, and which failure constitutes another sufficient ground for dismissal of the Canadian Jewish Congress complaint.
And neither does the Canadian Jewish Congress complaint survive the test of CHRA § 41(1)(d) of being better than trivial, frivolous, vexatious and bad faith, which failure to survive 41(1)(d) will be fully substantiated in the forthcoming Prytulak answer of 23-Feb-2003, but which failure to survive can be inferred even with the small evidence presented in the instant letter concerning CJC strict avoidance of all dialogue and debate over an interval of several years — because the only conceivable explanation of this strict avoidance is a CJC recognition of the lack of merit in anything it could think of saying.
The instant letter is not Lubomyr Prytulak's answer to the Canadian Jewish Congress complaint, but only a request for adequate time to answer, with a small number of issues glanced at that follow from a consideration of the age of the UKAR material complained of.
Irving ABELLA, National Honourary President, CJC, Department of History, York University, 4700 Keele Street, Toronto, ON M3J 1P3
Bernie FARBER, Executive Director, CJC, 4600 Bathurst Street, Toronto, ON M2R 3V2
Ed MORGAN, Chair, CJC, Faculty of Law, University of Toronto, 84 Queen's Park, Toronto, ON M5S 2C5
Moshe RONEN, Chair Board of Governors, CJC, 4600 Bathurst Street, Toronto, ON M2R 3V2
Len RUDNER, Director of Community Relations, CJC, 4600 Bathurst Street, Toronto, ON M2R 3V2