Mohammed Karzi v. Jonathan Fidler, Sara Jones and David Robert Findlay, 2010 HRTO 1

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mohammed Karzi

Applicant

-and-

Jonathan Fidler, Sara Jones and David Robert Findlay

Respondents

INTERIM DECISION

Adjudicator: Sherry Liang

Date: January 4, 2010

Citation: 2010 HRTO 1

Indexed as: Karzi v. Fidler

1This is an Application filed on May 21, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application arises out of comments allegedly made by the respondents during the course of a mediation. The mediation resulted in settlement of a lawsuit by the applicant, in relation to a motor vehicle accident.

2In this Application the respondent Jonathan Fidler, the mediator, has requested early dismissal on the basis that the applicant signed a full and final release with respect to the same matter. The document filed in support of his position is the "Agreement to Mediate" which the respondent states was signed by the applicant prior to the events in issue. The respondent Fidler relies on a term of the Agreement stating that the mediator shall have the immunity described in s. 82 of the Courts of Justice Act, R.S.O. 1990, c. C.43 ("judicial immunity").

3The respondents Sara Jones and David Robert Findlay, the applicant's representatives at the mediation, have filed a Request for an Order During Proceedings, seeking to amend their Response to include a request for early dismissal, relying on the terms of three other documents, a "Settlement Disclosure Notice: Final Settlement of a Statutory Accident Benefits Claim" and two "Full and Final Release".

4The Tribunal has the authority, under Rule 1.7 of its Rules of Procedure, to determine the order in which issues in a proceeding, including issues considered by a party to be preliminary, will be considered and determined. The Tribunal finds it appropriate to direct the parties to provide written submissions on the issue of whether "judicial immunity" applies to bar the Application against the respondent Fidler.

5The applicant's written submissions on this issue, including any relevant facts or documents not already referred to in the materials, must be provided to the other parties and to the Tribunal by January 18, 2010. The other parties must respond by February 1, 2010. The applicant may reply by February 8, 2010.

6The parties are directed to recent decisions of the Tribunal discussing the doctrine of judicial immunity, Hazel v. Ainsworth Engineered Corp., 2009 HRTO 2180, and Cartier v. Nairn, 2009 HRTO 2208 available at www.canlii.org.

7The applicant may wish to consult the Applicant's Guide, available on the Tribunal's website or from the Registrar's office. Pages 2-3 of the Guide set out sources of assistance that may be available to him.

REQUEST FOR ORDER

8The Tribunal grants the request to amend the Response of the respondents Jones and Findlay.

9The Tribunal will not deal with these respondents' request for early dismissal through written submissions.

10Once the respondent Fidler's request for early dismissal is determined, the Tribunal will decide how to deal with the Application, which may include scheduling a mediation, a hearing into the Application, or an opportunity for oral submissions on the preliminary issues only.

11I am not seized of this matter.