Cartier v. Nairn, 2009 HRTO 2208

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louise Cartier

Applicant

-and-

Marilyn Nairn

Respondent

DECISION

Adjudicator: Sheri D. Price

Date: December 17, 2009

Citation: 2009 HRTO 2208

Indexed as: Cartier v. Nairn

Written Submissions By

Louise Cartier, Applicant ) On her own behalf and ) William A. Sangster, Counsel

INTRODUCTION

1This Decision deals with whether the Tribunal has jurisdiction over the Application which alleges that the respondent labour arbitrator who dismissed the applicant’s discharge grievance infringed the applicant’s rights under the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

BACKGROUND

2The applicant filed an Application on February 5, 2009, under section 34 of the Code, alleging that she had been discriminated against in respect of employment on the basis of sex, record of offences, association with a person identified by sex and/or record of offences, and that she had experienced reprisals contrary to the Code. She later sought to add the grounds of race, colour, and disability to her Application. The Application named two of the applicant’s former employers, her trade union and numerous individuals as respondents to the Application, including Marilyn Nairn (the “arbitrator”), the labour arbitrator who heard and dismissed the applicant’s grievance regarding the January 2008 termination of her employment by her former employer, the Northeast Mental Health Centre – North Bay Campus (“NEMHC”).

3In reviewing the Application, it appeared to the Tribunal that the Application may have been filed outside the time permitted in the Code. The Tribunal sought submissions from the applicant with respect to the apparent delay in filing the Application and certain other issues. After considering those submissions, the Tribunal dismissed the Application against all of the respondents other than the arbitrator on the basis of delay: 2009 HRTO 1670.

4The allegations against the arbitrator are based upon findings made in the October 27, 2008 arbitration award, in which the arbitrator dismissed the applicant’s discharge grievance and upheld NEMHC’s decision to terminate the applicant’s employment. Although the Application was not untimely as against the arbitrator, the Tribunal sought and received submissions from the applicant regarding whether the Tribunal had jurisdiction over the allegations against the arbitrator regarding her actions as an adjudicator under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A: 2009 HRTO 1118.

5In deliberating on this issue, it appeared to me that the Tribunal might lack jurisdiction over the allegations against the arbitrator because of the doctrine of judicial immunity. Because that issue was not expressly identified in the earlier Interim Decision, I gave the applicant a specific opportunity to make submissions on this point: 2009 HRTO 1670. The applicant, through her counsel, filed written submissions with respect to the judicial immunity issue, which I have considered together with her earlier submissions regarding the Tribunal’s jurisdiction over the allegations against the arbitrator.

SUBMISSIONS OF THE APPLICANT

6The applicant’s allegations against the arbitrator are based upon findings made in her October 27, 2008 arbitration award, dismissing the applicant’s grievance and upholding NEMHC’s decision to terminate the applicant’s employment.

7In her submissions, the applicant takes great issue with a number of findings in the arbitration award, including the finding that she left work without permission and was insubordinate. She submits that, at the arbitration hearing, the employer’s witness admitted that she had given the applicant permission to leave. The applicant submits the arbitrator made an error when she found that the applicant had left without permission. Among other things, the applicant also asserts the arbitrator ought to have considered only whether the applicant engaged in insubordinate behaviour and left work without permission on January 19, 2008, the reason for termination set out in her termination letter.

8The applicant strongly objects to the fact that whether or not she was sick when she left work became an issue at the arbitration hearing. Ultimately, the arbitrator considered evidence on that issue, including a note from the applicant’s doctor, and concluded that the applicant was not sick as she claimed. The applicant submits that the arbitrator discriminated against her by refusing her doctor’s note. She feels that there has been a “miscarriage of justice” and that the Tribunal has the necessary power to deal with it and to overturn the decision.

9With respect to the issue of judicial immunity, the applicant submits that the doctrine of judicial immunity does not deprive the Tribunal of jurisdiction over the allegations against the arbitrator in the case at hand because the arbitrator did not follow the rules of natural justice in adjudicating the applicant’s grievance. The applicant submits that judicial immunity is not present when there are valid reasons for believing that a statutory tribunal’s adjudicative process did not comply with the rules of natural justice and relies on the decisions in Glengarry Memorial Hospital v. Ontario, (1993) 1993 CanLII 9434 (ON CTGDDC), 99 D.L.R. (4th) 682 (Ont. Gen. Div.) and Tremblay v. Commission des Affaires Sociales et al. (1992), 1992 CanLII 1135 (SCC), 90 D.L.R. (4th) 609 at 618-619 (S.C.C.).

DECISION

10The allegations against the arbitrator raise once again the Tribunal’s jurisdiction to deal with applications based on the exercise of the adjudicative functions by courts and tribunals. In a number of decisions, the Tribunal has found that the exercise of adjudicative functions by courts and tribunals, particularly the “content, reasons and result” of adjudicative decisions do not fall within the definition of “services” in the Code, and are therefore not within the Tribunal’s jurisdiction. See: Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99; Lindberg v. Workplace Safety and Insurance Board, 2009 HRTO 250; Christianson v. Social Benefits Tribunal, 2009 HRTO 886; Christianson v. (Ontario) Information and Privacy Commissioner, 2009 HRTO 203; Jacob v. Workplace Safety and Insurance Board, 2009 HRTO 1483; Dann v. Wallace, 2009 HRTO 392; Zaki v. Ontario (Community and Social Services) 2009 HRTO 1595.

11While I agree with the outcomes in the above-noted cases, they are of somewhat limited application to this case, since the applicant asserts that the arbitrator discriminated against her “in respect of employment” and the above decisions consider whether alleged discrimination by adjudicators is “in respect of services”. In any event, having carefully considered this matter, I find that the Tribunal has no jurisdiction to hear applications against courts and tribunals based on the execution of their duties as adjudicators because of the doctrine of judicial immunity.

12The doctrine of judicial immunity prohibits legal proceedings against judicial actors which are based on their actions as adjudicators or decision-makers. The doctrine is rooted in the principle of judicial independence, the purpose of which is to ensure that judicial actors are free to execute their decision-making duties with independence and without fear of consequences.

13The principle of judicial immunity has been applied to protect judicial actors from human rights complaints. In Taylor v. Canada (Attorney General) (2000), 2000 CanLII 17120 (FCA), 184 D.L.R. (4th) 706 (leave ref’d [2000] No. 213), the Federal Court of Appeal held that the Canadian Human Rights Commission and Tribunal lacked jurisdiction over a complaint that a judge of the Ontario Court General Division had discriminated against a courtroom observer who was excluded from the courtroom on the basis of his religious head covering. In Taylor, Sexton J.A. for the Federal Court of Appeal explained why judicial immunity was so important to judicial independence:

…[T]he most serious consequence of permitting judges to be sued for their decisions is that judicial independence would be severely compromised. If judges recognized that they could be brought to account for their decisions, their decisions might not be based on a dispassionate appreciation of the facts and law related to the dispute. Rather, they might be tempered by thoughts of which party would be more likely to bring an action if they were disappointed by the result, or by thoughts of whether a ground-breaking but just approach to a difficult legal problem might be later impugned in an action for damages against that judge, all of which would be raised by the mere threat of litigation. In Lord Denning's words, a judge would "turn the pages of his books with trembling fingers, asking himself: “If I do this, shall I be liable in damages?”

14Recently, the Supreme Court of British Columbia revisited the question of whether judicial immunity protects judicial actors from complaints that they have violated human rights legislation. In Gonzalez v. Ministry of Attorney General, 2009 BCSC 639, the Court upheld a decision of the British Columbia Human Rights Tribunal in which it found that it lacked jurisdiction to deal with part of a complaint alleging discrimination by a provincial court judge on the basis of disability in respect of employment and services. In that case, the judge had been accused of discriminating against legal counsel in a hearing under the Child Family and Community Service Act, R.S.B.C. 1996, c.46, when he made comments about how accommodation of her physical disability was prolonging the proceedings. The basis for the Tribunal’s decision that it did not have jurisdiction in that matter was that the judge was protected from human rights complaints by judicial immunity.

15The British Columbia Court reached its conclusion that the doctrine of judicial immunity protects judicial actors from complaints under human rights legislation cognizant of the public importance and quasi-constitutional status of human rights legislation:

Whether he was wrong or right, committed a human rights violation or simply acted inappropriately, the presiding judge said these things in the course of carrying out his legal duties.

There is no question that human rights legislation is quasi-constitutional and should be given a broad and liberal application. However, judicial immunity is also a constitutional principle and, as the Supreme Court of Canada held in Morier, the immunity of judges must be preserved even when it is alleged they have violated human rights. Judicial immunity is a necessary adjunct to the independence of the judiciary. Any erosion of this principle causes more detriment to the public’s confidence in the judiciary than would result from insulating any particular judge from civil liability for wrongful acts in the course of his duties. As Lord Bridge of Harwich said in McC v. Mullan, [1984] 3 ALL E.R. 908 at p. 916:

The principle underlying this rule is clear. If one judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety-nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction.

16Moreover, the concept of judicial immunity has been held to protect not only judges from legal proceedings based on the execution of their duties as judicial actors, but also tribunals and other statutory-decision makers. In Agnew v. Ontario Association of Architects (1987), 1987 CanLII 4030 (ON HCJ), 64 O.R. (2d) 8 (Div. Ct.) at p. 14, Campbell J. of the Ontario Divisional Court held that judicial immunity applies not only to judges, but also to members of administrative tribunals. In that case, there had been an attempt to subpoena members of a committee of the Ontario Association of Architects about a determination they had made pursuant to decision-making authority accorded them under the Architects Act, 1984, S.O. 1984, c. 12:

The authorities do not make it clear whether this general rule applies equally to members of administrative tribunals. In logic, there is no reason why it should not. The mischief of penetrating the decision process of a tribunal member is exactly the same as the mischief of penetrating the decision process of a judge

17In Agnew, supra, Justice Campbell goes on to describe how judicial immunity ensures that adjudicative decisions are reviewed through the proper channels of review and appeal, instead of by process of cross-examination (at para. 28):

Apart from the practical consideration that tribunal members and judges would spend more time testifying about their decisions than making them, their compellability would be inconsistent with any system of finality of decisions. No decision and a fortiori no record, would be really final until the judge or tribunal member had been cross-examined about his decision. Instead of review by appeal or extraordinary remedy, a system would grow up of review by cross-examination. In the case of a specialized tribunal representing different interests the mischief would be even greater because the process of discussion and compromise among different points of view would not work if stripped of its confidentiality.

18It should be noted that labour arbitrators appointed under predecessor legislation to the Labour Relations Act, 1995 have been found to be statutory tribunals: International Nickel Company of Canada Limited and Rivando (1956), 1956 CanLII 122 (ON CA), 2 D.L.R. (2d) 700 (ON.C.A.), followed in Port Arthur Shipbuilding Company v. Arthurs, 1968 CanLII 29 (SCC), [1969] S.C.R. 85 and Keeprite Workers Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 114 D.L.R. (3d) 162 (ON.C.A.).

19Judicial immunity has also been extended to members of the Immigration and Refugee Board, Ermina v. Canada (Minister of Citizenship and Immigration (1998), 1998 CanLII 8969 (FC), 167 D.L.R. (4th) 764 (F.C.); the Law Society of Upper Canada in respect of its decision-making disciplinary processes and investigative functions, Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; and members of provincial commissions of public inquiry, Morier v. Rivard, 1985 CanLII 26 (SCC), [1985] 2 S.C.R. 716.

20Turning to the case at hand, the issue is whether the Tribunal has jurisdiction over the applicant’s allegations against the labour arbitrator who dismissed her termination grievance. In this case, the arbitrator was acting in the exercise of her duties as a labour arbitrator appointed under the Labour Relations Act, 1995. Among other things, arbitrators acting under the authority of that Act have the jurisdiction to interpret and apply employment-related statutes, including the Code. In my view, it would drastically reduce the ability of labour arbitrators to independently and impartially decide cases before them, and to apply not only the contractual terms of collective agreements but also of public statutes, if they were susceptible to complaints under the Code. It is the need to protect the independence of adjudicators – whether they be judges or members of statutory tribunals, including labour arbitrators – that leads me to the conclusion that they are protected by judicial immunity from applications under the Code.

21The applicant submits that judicial immunity does not shield an administrative tribunal where there are valid reasons for believing that the rules of natural justice were not followed by the tribunal. Even if that is the case, the applicant has presented no valid reasons in this case for believing that the rules of natural justice were not followed by the applicant in adjudicating the applicant’s discharge grievance. The applicant baldly asserts that the rules of natural justice were not followed, but she does not put forward any submissions regarding which rules of natural justice were not followed by the arbitrator, or how such rules were not followed. I do agree with the applicant that judicial immunity is not absolute. The courts have stated that judicial immunity does not apply where it is shown that a judicial actor knowingly acted beyond his or her jurisdiction. (Taylor, supra, at para. 41) However, there are no such allegations in this case.

22Accordingly, I find that the Tribunal has no jurisdiction over the applicant’s allegations against the respondent acting in the course of her duties as an arbitrator under the Labour Relations Act, 1995.

23The Application is dismissed.