Babineau v. Ontario (Municipal Affairs and Housing), 2010 HRTO 1276

Human Rights Tribunal of Ontario

B E T W E E N:

Guy Babineau

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Minister of Municipal Affairs and Housing, Landlord and Tenant Board and Elizabeth Beckett

Respondents

Interim DECISION

Adjudicator: Mark Hart
Date: June 3, 2010
Citation: 2010 HRTO 1276
Indexed as: Babineau v. Ontario (Municipal Affairs and Housing)

1This is an Application filed under section 53(3) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) on December 30, 2008. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on August 2, 2005.

2The applicant’s complaint relates to an alleged denial of accommodation for his hearing impairment by the Landlord and Tenant Board (then the Ontario Rental Housing Tribunal) in relation to a proceeding before Elizabeth Beckett in 2005. The respondents have raised preliminary objections to this Application proceeding on grounds that Ms. Beckett as an adjudicator is protected statutory immunity or by the principle of judicial immunity and that the subject matter of this Application has already been appropriately dealt with in the proceeding before the Board.

3This matter originally was scheduled to proceed to a hearing on February 11 and 12, 2010. Due to a medical issue affecting the applicant and at the applicant’s request, the hearing was adjourned and re-scheduled to June 4 and 7, 2010 on consent of all parties.

4On June 3, 2010, the day before the scheduled hearing, the applicant wrote to the Tribunal requesting that the hearing be adjourned sine die pending the determination of an Application for Judicial Review that he had commenced on June 2, 2010. The applicant’s judicial review application seeks various declarations from the Divisional Court, including a declaration that Ms. Beckett is not protected by the principle of judicial immunity, that this Tribunal is functus officio on that issue as a result of a previous decision of the Ontario Human Rights Commission to allow the applicant’s complaint to proceed, and that this Tribunal erred in refusing to add the Attorney General of Ontario as a party to the proceedings.

5I first will address the issue raised regarding the application of the principle of judicial immunity to Ms. Beckett. This issue was raised by the respondents when they first responded to the Application. Prior to the original hearing dates, the Tribunal had issued a Case Assessment Direction, dated October 27, 2009 in order to advise the parties as to how the Tribunal intended to proceed with the hearing on the scheduled hearing dates. This Case Assessment Direction states that, in the Tribunal’s view, the appropriate way to proceed with the hearing is to first hear the applicant’s evidence on the merits and the preliminary issues and then to hear any evidence that the respondents wish to lead in support of their preliminary request to dismiss the Application. After that, the Tribunal proposes to hear argument from the parties on the preliminary issues.

6At this point, no determination has been made by this Tribunal regarding the preliminary request to dismiss the Application, including the respondents’ argument that Ms. Beckett is protected by statutory or judicial immunity. At the hearing tomorrow, the applicant will be able to provide evidence to this Tribunal in support of his position that this Tribunal is functus officio as a result of the prior Commission decision in addition to any other evidence he wishes to lead either on the merits of his Application or on the preliminary issues raised by the respondents. He also will have full opportunity to make legal argument and submissions to the Tribunal on these issues.

7In my view, the applicant’s judicial review application is premature. It is the role and responsibility of this Tribunal at first instance to make a determination as to the preliminary issues raised by the respondents. If the respondents are successful on their preliminary request to dismiss the Application, then the applicant may avail himself of his right to request reconsideration of that decision in accordance with the Tribunal’s Rules, as that would be a final decision, or to proceed with a judicial review application, where the Divisional Court would have the benefit of a full record of the evidence before the Tribunal and of the Tribunal’s reasons for its decisions. Alternatively, if the Tribunal dismissed the respondents’ preliminary request to dismiss the Application, then the hearing on the merits would proceed and the issues raised on the current judicial review application regarding the application of statutory or judicial immunity to Ms. Beckett would be moot.

8As stated above, the applicant also seeks on his judicial review application a declaration that this Tribunal erred in refusing to add the Attorney General of Ontario as a party to the proceedings. In fact, what the applicant sought was to add two legal counsel for the respondents as additional respondents to his Application on the basis that their position on behalf of the respondents contributed to the alleged discrimination. In its Interim Decision, dated September 4, 2009, 2009 HRTO 1404, while acknowledging this Tribunal’s broad discretion to add a party to a proceeding, this Tribunal expressed the view that legal counsel do not become parties to alleged discrimination by defending the interests of their client. As a result, this Tribunal found no basis upon which to exercise its discretion to add counsel as additional parties to the proceeding.

9The applicant sought reconsideration of this decision, which was denied by this Tribunal on the basis that its decision not to add counsel as parties to the proceeding was an interim decision and not a final decision, 2009 HRTO 1475. Under the Tribunal’s Rules, reconsideration can only be sought from a final decision of the Tribunal.

10I see no proper basis upon which an adjournment can be supported in view of the Tribunal’s decision not to add counsel as additional party respondents to this Application, which in my view was correct. In addition, I note that this is an Application filed under s. 53(3) of the transitional provisions of the Code, which apply where complaints originally had been filed with the Commission and were moved over to the Tribunal under the new human rights system established as of June 30, 2008. Rule 6.3 of the Tribunal’s Rules of Procedure for Transitional Applications, which applies to an application filed under s. 53(3) of the Code, states that “Applications made in accordance with these Rules must be based on the subject-matter of the complaint or amended complaint filed at the Commission and the Tribunal will not entertain preliminary requests to add grounds, expand the subject matter of the complaint or add parties to the Application” (emphasis added).

11The applicant’s request for an adjournment also was accompanied by a letter to the Tribunal dated June 3, 2010, which raises additional reasons for his request. The applicant first states that he was prompted to commence his judicial review application by a statement by respondents’ counsel in a letter, dated May 27, 2010 that the Ontario Rental Housing Tribunal had provided the applicant with captioning services in January 2006, after his complaint had been filed with the Commission. The applicant takes the position that if he was entitled to captioning services after he filed his complaint, then he should have been entitled to similar services previously. First, I note that the applicant himself has been aware that he was provided with captioning services by that Tribunal for over four years now, so the statement by respondents’ counsel was not new information. Second, the point the applicant is making may bear on the merits of the issues raised on his Application before this Tribunal, which may be addressed by this Tribunal depending upon the determination of the preliminary issues raised by the respondents. Once again, the applicant’s reference to this information does not provide any proper basis to support an adjournment of the scheduled hearing dates.

12The applicant also states that he is considering proceeding by way of a civil law suit and references complaints that he has filed with the Law Society of Upper Canada, which he states would make it inappropriate to discuss compensatory matters before this Tribunal. First, the fact that the applicant may be considering the commencement of a civil law suit is no proper basis to support an adjournment of the scheduled hearing dates in this matter. Second, it is this Tribunal’s role and responsibility to hear and determine the preliminary issues raised by the respondents, and then, if the Application proceeds, to hear the evidence on the merits of the Application and determine whether there has been any violation of the Code and if so award an appropriate remedy. I do not understand how complaints to the Law Society of Upper Canada in relation to counsel who are not party respondents to this proceeding is relevant to the tasks to be performed by this Tribunal or provides any proper basis to support an adjournment of the scheduled hearing dates.

13The Tribunal has received e-mail correspondence from the applicant indicating that he will excuse himself from the proceedings before the Tribunal if his request for an adjournment is not granted. The applicant should be aware that it is his responsibility to attend the hearing and present evidence in support of his Application, and if he fails to do so, the Tribunal may dismiss his Application or may proceed to hear and determine the respondents’ preliminary request to dismiss in his absence.

14For all of these reasons, the applicant’s request for an adjournment is denied and the hearing will proceed as scheduled commencing at 9:30 a.m. tomorrow, June 4, 2010.