Lydia Lemieux v. Robert Howe, 2010 HRTO 1596

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lydia Lemieux Applicant

-and-

Robert Howe Respondent

DECISION

Adjudicator: Sheri D. Price Date: July 23, 2010 Citation: 2010 HRTO 1596 Indexed as: Lemieux v. Howe

WRITTEN SUBMISSIONS BY

Lydia Lemieux, Applicant ) Yvette Lemieux, Representative

1The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that her rights under the Code were infringed by the respondent, the labour arbitrator who was appointed to hear and determine a grievance against the termination of the applicant’s employment pursuant to the terms of a collective agreement between the applicant’s trade union and the applicant’s former employer and the terms of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, as amended (the “LRA”).

2Among other things, the respondent submits that the Application is outside the jurisdiction of the Tribunal because the respondent is protected from the Application by the doctrine of judicial immunity. In an earlier Interim Decision in this matter, 2010 HRTO 834, I directed the applicant to provide written submissions with respect to this issue.

3The allegations against the respondent in the Application all stem from the exercise of his duties as the labour arbitrator appointed to hear and determine the applicant’s termination grievance. Specifically, in her Application, the applicant complains of decisions made by the respondent regarding the pre-hearing disclosure of certain documents; the adjournment of the arbitration hearing; and whether the respondent ought to have considered a document sent to him directly by the applicant’s mother. The applicant also complains that the respondent “allowed” the parties to the collective agreement to enter into a settlement of the applicant’s grievance.

4In her written submissions on the issue of judicial immunity, the applicant submits that the arbitration hearing in respect of her termination grievance was scheduled to proceed before the respondent on April 30, 2008. She submits that, on that date, the arbitration hearing did not commence because the applicant’s trade union and former employer proceeded to settle the applicant’s grievance without her consent and over her objections.

5The applicant submits that judicial immunity is not absolute and that it does not shield an arbitrator who “refrains from taking action in harmony with any of the rules of natural justice, thereby permitting an employer and a union to do things that are out of harmony with any of the rules of natural justice.” The applicant submits that pursuant to the rules of natural justice, she had a right to be heard; that is, a right to prepare and present her case before the respondent. She submits that the respondent failed to make decisions to protect the applicant’s right to be heard and is therefore not protected by judicial immunity from this Application.

6The applicant contends that, on the day scheduled for the arbitration hearing, the respondent was aware that medical professionals had attributed the applicant’s serious medical condition to stress caused by the actions of the applicant’s former employer; that the applicant had filed a duty of fair representation complaint under the LRA against her union alleging improper and discriminatory behaviour towards her; and that the employer was continuing to treat the applicant unjustly and unlawfully, among other things. The applicant submits that this constituted “sufficient evidence” for the respondent to make the decisions required in order to protect the applicant’s right to natural justice.

7The applicant submits that the respondent denied her natural justice when he declined to “stay” the arbitration proceedings, thereby permitting the union and the employer to settle the applicant’s grievance without the medical documentation necessary for the parties to reach a proper and full settlement of the grievance. The applicant submits that, in the circumstances of her case, natural justice required the arbitrator to “stay” the grievance arbitration proceedings pending the outcome of the applicant’s duty of fair representation complaint against her union; and in order to afford the applicant an opportunity to complete medical investigations regarding the cause of her disability; and to give the applicant a chance to see if she could recover sufficiently to allow her to return to work with the employer.

8If it was not legally possible for the respondent to stay the arbitration hearing, the applicant submits that he ought to have granted the applicant’s Power of Attorney representative independent standing to represent the applicant at the arbitration hearing, instead of the union, against whom she was complaining. This submission is, however, somewhat at odds with the acknowledged fact that there was no arbitration hearing.

9In Cartier v. Nairn, 2009 HRTO 2208, the Tribunal held that arbitrators appointed pursuant to the terms of the LRA are protected by judicial immunity from applications under the Code which are based on the exercise of their duties as adjudicators. The primary reason for extending judicial immunity to labour arbitrators is to protect their ability to independently determine grievances, without fear that unhappy parties will initiate legal proceedings against them based on the fulfillment of their role in the justice system:

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. Cartier, supra, at para. 20. See also Hazel v. Ainsworth Engineered, 2009 HRTO 2180.

10The applicant in this case asserts that the respondent is not protected by judicial immunity because he did not follow the rules of natural justice to ensure that the applicant’s right to be heard was protected. This is a doubtful proposition. In Baryluk (Wyrd Sisters) v. Campbell, 2008 CanLII 55134, the Ontario Superior Court, while recognizing that immunity does not extend to “purely personal acts”, held that “there is an absolute immunity for acts done in the course of or in connection with … judicial duties.” Moreover, the Court specifically rejects the suggestion that mere allegations in pleadings can place judges in the position of having to defend the manner in which they have discharged their judicial duties in legal proceedings commenced by dissatisfied litigants (at para. 31).

A plaintiff cannot successfully circumvent judicial immunity by merely pleading bald allegations of misconduct including excess of jurisdiction, abuse of process, malice or bad faith. If the law were otherwise, it would render the immunity meaningless and impair judicial independence due to the threat of personal liability by the simple plea of malicious intent. (Baryluk, supra, at para. 27)

11It seems to me that the above proposition applies with equal force here, where the applicant pleads that the respondent breached the rules of natural justice and seeks to make him personally liable for such alleged errors. The Superior Court in Baryluk reiterates that errors made in a judicial capacity may be corrected on appeal or judicial review, as the case may be, but not by civil actions brought against the adjudicator personally: Royer v. Mignault, [1988] A.Q. No. 47 at para. 5-6, as cited in Baryluk, supra, at para. 25. (See also Agnew v. Ontario Association of Architects (1987), 1987 CanLII 4030 (ON HCJ), 64 O.R. (2d) 8 (Div. Ct.) at p. 28, as cited in Cartier, supra, at para. 17).

12In any event, even if the applicant were correct in her assertion that adjudicators are not protected by judicial immunity where they fail to follow the rules of natural justice, there is no basis upon which to conclude that the respondent did anything to deprive the applicant of natural justice in this case. The reason there was no hearing was not because the respondent decided not to convene one. There was no hearing because the union and the employer settled the applicant’s grievance. It is well-established that trade unions and employers are entitled to settle grievances which have been filed on behalf of employees, as long as, in doing so, the trade union does not act in a manner which is discriminatory, arbitrary or in bad faith in the representation of an employee in its bargaining unit. The Ontario Labour Relations Board dismissed the applicant’s claim that her trade union acted in an arbitrary, discriminatory, and bad faith manner in settling her grievance on the basis it did: unreported OLRB decision, April 7, 2009. The respondent had absolutely no power to prevent the union and the employer from settling a grievance filed pursuant to the collective agreement, whether by staying the arbitration proceeding or otherwise. Moreover, once the grievance was settled, there was no difference between the parties to the collective agreement (that is, the union and the employer) for the respondent to adjudicate.

13The Application in this matter is based wholly on the respondent’s exercise of his duties as a labour arbitrator appointed pursuant to the terms of the collective agreement and LRA. The doctrine of judicial immunity protects the respondent from legal proceedings based on the execution of those duties. Accordingly, I find that the Tribunal has no jurisdiction over the applicant’s allegations against the respondent.

14The Application is dismissed.