The Human Rights Committee,
established under article 28 of the International Covenant on Civil and
Meeting on 30 October 2008
Adopts the following:
DECISION ON ADMISSIBILITY
1. The authors of the communication are Mr. Ziad Anani (first author) and
his wife, Ms. Andrea Anani (second author), both Canadian nationals, born on
9 December 1935 and 11 February 1959, respectively. The first author was
born on 9 December 1935 in Jerusalem, then Palestine. The second author was
born on 11 February 1959 in Jacksonville, USA. The authors claim to be
victims of violations by Canada [FN1] of article 2, paragraphs 1 and 3, and
of articles 7, 14, paragraph 1, 20, 25 (c) and 26 of the Covenant. They are
not represented by counsel.
[FN1] The International Covenant on Civil and Political Rights and the
Optional Protocol both entered into force for the State party on 19 August
THE FACTS AS SUBMITTED BY THE AUTHOR:
2.1 The first set of proceedings relates to an application that the first
author filed with the Canadian Intellectual Property Office on 4 March 1998
to patent an invention entitled 'Controlled and Self Regulating Sound
Intensity to Control the Sound Level of Sound Producing Apparatus or
Machinery'. He also requested financial assistance from the Ministry of
Industry to market the invention, through its specialized operating agency
Technology Partnerships Canada (TPC) and the Industrial Research Assistance
Program (IRAP) of the National Research Council. On 24 September 2001, the
Canadian Intellectual Property Office granted and issued the patent. However,
the IRAP required the first author to incorporate his business in order to
qualify for financial assistance. After the first author had incorporated a
company, his request for financial assistance was rejected on the ground
that his invention was already being commercially exploited.
2.2 On 3 November 2003, the first author filed a claim with the Supreme
Court of British Columbia challenging the rejection of his request for
financial assistance by the Ministry of Industry. On 26 February 2004,
Justice H., who had replaced Justice T. despite the first author's objection,
dismissed the claim and further directed that the action be tried in the
Federal Court of Canada.
2.3 On 4 April 2006, the first author dissolved his company for lack of
activity and lack of funds.
2.4 The second set of proceedings relates to a dispute between the authors
and 'Uniglobe Travel International' concerning a franchise agreement that
the authors and Uniglobe signed on 22 February 1999. After Uniglobe had
terminated the agreement on 31 October 2001, the authors filed an action in
the Supreme Court of British Columbia on 21 December 2001 seeking damages
for breach of contract by Uniglobe, wrongful termination of the franchise
agreement, fraud and loss of opportunity to earn profits. The authors also
alleged that Uniglobe had made attempts on their life in 2002. On 18 June
2004, the Court dismissed the claim and awarded Uniglobe $ 2,700 for its
counterclaim for monies owing and damages for lost royalties. The authors'
appeals were dismissed by the Court of Appeal for British Columbia and, on 9
June 2005, by the Supreme Court of Canada.
2.5 On 14 January 2005, a Master of the Supreme Court of British Columbia
assessed the legal costs to be paid by the authors to Uniglobe at $ 80,000.
The authors did not appear at the assessment hearing. By letter dated 19
January 2005, counsel for Uniglobe advised them that there was no transcript
of the assessment hearing, as submissions and rulings made in such hearings
are not recorded. The authors' applications for leave to appeal to the Court
of Appeal for British Columbia and, subsequently, to the Supreme Court of
Canada were dismissed on 7 February and 9 June 2005, respectively.
2.6 The third set of proceedings relates to a claim filed against the
authors in the Provincial Court of British Columbia by Mr. A. I., the
President and only director of Malaspina Coach Lines Ltd, who had used the
authors' travel agency for his tour operations. On 2 October 2002, Judge M.
ordered the authors to pay Malaspina $ 2945.31 plus court-ordered interest.
At the same time, he dismissed their $ 7,013.98 counterclaim for breach of
contract. On 2 May 2003, the British Columbia Supreme Court dismissed the
authors' appeal against the judgment of the Provincial Court.
2.7 The authors subsequently filed a claim against Mr. A. I., his wife and
Malaspina Coach Lines Ltd. for perjury, forgery, fraud, conspiracy and
defamation and for deceptive and unconscionable acts under the Trade
Practice Act seeking $ 79,000 damages. On 14 October 2003, the Supreme Court
of British Columbia dismissed the claim and, on 29 June 2004, the Court of
Appeal of British Columbia dismissed the authors' appeal and prohibited them
from commencing or continuing any legal proceedings against the defendants
without first obtaining leave from the Court. The Supreme Court of Canada
upheld the order.
2.8 On 27 April 2006, the authors filed a statement of claim against the
State of Canada in the Federal Court of Canada asking the Court to vacate
the "apartheid" orders of the Supreme Court of British Columbia and the
Court of Appeal for British Columbia dated 18 and 29 June 2004,
respectively. On 28 April 2006, the Registry advised the authors of the
decision of Justice B. that the Federal Court had prima facie no
jurisdiction on the matter and that the Registrar should not file the claim.
2.9 On 2 May 2006, the authors filed a new statement of claim with the
Ontario Superior Court of Justice, which dismissed the claim for
re-litigation and abuse of process on 29 June 2006. On 18 October 2006, the
Court of Appeal for Ontario dismissed the authors' appeal against the
decision of the Ontario Superior Court of Justice.
2.10 On 15 December 2006, the authors filed a notice of application for
leave to appeal to the Supreme Court of Canada, again asking for vacation of
the lower courts' decisions and seeking damages. On 29 March 2007, the Court
dismissed the application with costs.
3.1 In relation to all three proceedings, the authors claim that they were
denied a fair and public hearing by a competent, independent and impartial
tribunal, in violation of article 14, paragraph 1, of the Covenant. They
further allege violations of articles 2, paragraph 1, and 26 of the Covenant
because the judges discriminated against them on the basis of their Muslim
faith and the Palestinian ethnic origin of the first author. By denying them
an effective remedy to seek compensation for their lost profits (i.e. $
12,500,000 for the commercial exploitation of the patent between 2001 and
2021, $ 1,109,500 for the remaining profitable seven years and six months of
the terminated franchise agreement, and approximately $ 7,000 for their
counterclaim against Malaspina) and legal costs, the State party also
violated article 2, paragraph 3, of the Covenant.
3.2 As regards the first set of proceedings, the authors claim that the IRAP
made false allegations that the first author's patent was already being
commercially exploited. They allege that by denying the first author the
right and the opportunity to have access to a public service offered by
Industry Canada and by discriminating against him in the access to financial
assistance, the State party also violated his rights under articles 25 (c)
and 26 of the Covenant. They further submit that they were unable to appeal
the Master's order in the assessment hearing to a judge of the Supreme Court
of British Columbia, in the absence of any transcripts of the submissions or
the ruling made in the hearing.
3.3 With regard to the second set of proceedings, the authors allege that
the trial judge denied them the right to a fair trial by allowing Uniglobe
to call surprise witnesses and to cross-examine adverse witnesses without
allowing the authors to cross-examine the defendants' witnesses and "by
believing impeached witnesses for not telling the truth under oath."
3.4 In relation to the third set of proceedings, the authors submit that Mr.
A. I. and his wife fabricated defamatory evidence. Judge M. accepted hearsay
evidence to justify his ruling in favour of Mr. A. I. and his wife. The
dismissal of the authors' action against Mr. A. I. and his wife showed that
the judges were biased against them because of their Muslim faith and that
they favoured Mr. A. I. and his wife who belonged to the Pentecostal Church.
For the authors, the State party's conduct amounts to advocacy of racial and
religious hatred that constitutes incitement to discrimination, hostility or
violence against the authors, in breach of article 20, paragraph 2, of the
3.5 The authors claim that by refusing to receive their statement of claim,
the Federal Court of Canada denied them equal access to the courts and
tribunals. Their treatment during the hearing by Justice H. in the Ontario
Superior Court, who allegedly made fun of the authors, and in the Court of
Appeal for Ontario was degrading and contrary to article 7 of the Covenant.
3.6 The authors submit that they have exhausted all available domestic
remedies and that the same matter is not being examined under another
procedure of international investigation or settlement.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE:
4.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with article 93 of its rules of
procedure, decide whether or not it is admissible under the Optional
Protocol to the Covenant.
4.2 The Committee considers that, even assuming that the authors' claims
would not be inadmissible due to non-exhaustion of domestic remedies
(article 5, paragraph 2 (b), of the Optional Protocol), they are
inadmissible either because they fall outside the scope of any of the
provisions of the Covenant invoked by the authors, or because they have not
been sufficiently substantiated for purposes of admissibility.
5. The Human Rights Committee therefore decides:
a) That the communication is inadmissible under articles 2 and 3 of the
b) That this decision shall be communicated to the authors and, for
information, to the State Party.
[Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly.]
Made public by decision of the Human Rights Committee.