Babineau v. Ontario (Municipal Affairs and Housing), 2010 HRTO 1777

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

DECISION

Adjudicator: Mark Hart Date: August 30, 2010 Citation: 2010 HRTO 1777 Indexed as: Babineau v. Ontario (Municipal Affairs and Housing)

APPEARANCES BY

Guy Babineau, Applicant ) On his own behalf 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 ) Darrell Kloeze, Counsel

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 alleges that he experienced discrimination because of disability in respect of goods, services and facilities contrary to sections 1 and 9 of the Code, arising out of an alleged denial of accommodation for his hearing impairment by the Landlord and Tenant Board (then the Ontario Rental Housing Tribunal) in a proceeding before Tribunal member Elizabeth Beckett in 2005.

3The respondents 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, that the adjudicative decisions made by Ms. Beckett are not a “service” within the meaning of the Code, and that the subject matter of this Application has already been appropriately dealt with in the proceeding before the Board.

4A preliminary hearing to hear oral submissions from the parties took place on June 4, 2010. Prior to this preliminary hearing, the applicant commenced an application for judicial review and sought an adjournment of the hearing on that basis. This request was denied in my Interim Decision, dated June 3, 2010, 2010 HRTO 1276. Accordingly, the preliminary hearing proceeded as scheduled on June 4, 2010.

5While the applicant appeared at the preliminary hearing, he stated that he was appearing under “duress”. I clarified with him that what he meant by duress was that he had requested an adjournment because of his judicial review application, and that this request had been denied. I do not accept that this constitutes “duress”, but recognize that the applicant was appearing before me without prejudice to his right to proceed with his judicial review application if he sees fit.

6At the hearing, consistent with a Case Assessment Direction that previously had been issued to the parties in this proceeding and on consent of the parties, I heard the applicant’s evidence in chief in relation to the allegations made in his complaint and also heard any evidence he wished to provide relevant to the preliminary issues raised by the respondents. I also allowed counsel for the respondents to cross-examine the applicant solely in relation to the preliminary issues raised. After this, I heard oral submissions from the parties. At the applicant’s request, I afforded him the opportunity to file further written submissions following the preliminary hearing, which he did on June 11 and 17, 2010.

7At the preliminary hearing, a real time captionist was provided as requested by the applicant and, also at his request, he was provided with a copy of the transcript prepared by the captionist. Consistent with the Tribunal’s Rules, this transcript was provided for the assistance of the applicant and does not form part of the record of proceeding in this matter.

Background

8The applicant is a paralegal whose work includes providing representation for clients in relation to residential tenancy matters before what was then known as the Ontario Rental Housing Tribunal, which is now the Landlord and Tenant Board (the “Rental Tribunal”).

9The applicant was representing a small number of tenants in relation to an application before the Rental Tribunal alleging substantial interference with the reasonable enjoyment of their rental units by the landlord for two apartment buildings on Weston Road in Toronto. A much larger group of tenants also had filed an application raising the same issue in relation to these buildings, and was separately represented before the Tribunal.

10Ms. Beckett was the Rental Tribunal member who heard these applications. The hearing of these applications was scheduled to commence on March 30, 2005. On March 29, 2005, the applicant wrote to the Interim Chair of the Rental Tribunal to raise a number of issues, including a request that he be provided with a note-taker for the hearing due to his hearing disability and a request that the March 30, 2005 hearing be postponed in light of this and other requests.

11The applicant in his evidence before me stated that prior to this letter, he had made a request to Rental Tribunal staff for accommodation at the hearing either by being provided with a note-taker or a real time captionist (a note-taker simply takes summary notes of the proceeding whereas a real time captionist takes a verbatim transcript). The applicant’s evidence was that he understood from the Rental Tribunal staff member that his request would be addressed by the adjudicator assigned to conduct the hearing. There are no records to support that the applicant had made this previous request to Rental Tribunal staff, nor is any such prior request mentioned in his March 29, 2005 letter or in the complaint filed with the Commission. In any event, at the hearing before me, the applicant clarified that his allegations related solely to the actions and decisions of Ms. Beckett, and he was not raising any allegation arising out of the conduct of Rental Tribunal staff.

12The hearing proceeded before Ms. Beckett on March 30, 2005. At this hearing, procedural issues were addressed relating to the conduct of the hearing. The applications filed by the tenants alleged substantial interference with the common areas of the two buildings and with their own individual units. As a result of the hearing on March 30, 2005, an order was made by Ms. Beckett, dated April 22, 2005 directing the tenants to amend their applications to separate the common area concerns from the unit specific concerns. The hearing of applications relating to common area concerns was scheduled to commence on May 9, 2005, and the individual unit concerns were to be addressed separately at a later time.

13There is no transcript from the March 30, 2005 hearing. The applicant states that his request for accommodation was raised at this hearing, and that Ms. Beckett requested that he provide a doctor’s note to support his request. The applicant alleges that Ms. Beckett asked him to provide proof of his hearing impairment, which he believes was unnecessary as he was wearing a bone anchored hearing aid which was visible.

14Following the hearing on March 30, 2005, the applicant wrote to Ms. Beckett and to the Interim Chair of the Rental Tribunal by letters, dated April 6, 2005, in which he raised the inappropriateness of being requested to provide documentation of his hearing disability. The applicant also provided a note from his doctor which states that he requires a “computized note taker due to hearing loss”. The applicant clarified in his covering letter that he was requesting that he be provided with a captionist for the hearing that was to commence on May 9, 2005. Also on April 6, 2005, the applicant sent a letter to the Ontario Human Rights Commission raising his concerns.

15Ms. Beckett responded to the applicant by letter, dated April 22, 2005. She clarified that her intent in asking for medical documentation was to better understand the full nature of the applicant’s disability in order to understand how accommodation could best be achieved. She noted that the applicant had appeared before her on another occasion and did not indicate that he needed a note-taker or any other assistance other than for her to be aware that he experiences some hearing difficulties and that she needs to articulate clearly. This is not disputed by the applicant, although he states that while he can cope with shorter proceedings, he requires accommodation for more complex hearings because he finds it challenging to both listen and take notes at the same time.

16In her letter, Ms. Beckett confirmed that she understood that the applicant was requesting a captionist, and asked whether providing the applicant with an audio CD of the hearing at the end of each day would be acceptable instead. She also stated that she would request that all parties speak distinctly and the applicant would be provided with a table in the hearing room close to the witness box in order to maximize his hearing ability. Ms. Beckett also apologized if her response to him at the hearing on March 30, 2005 seemed less than sensitive, and noted that it was a difficult hearing with several representatives vying for attention and many procedural matters to be addressed.

17The applicant replied by letter to Ms. Beckett dated April 28, 2005 in which he stated that providing him with audio CDs was not adequate, and that he required a captionist in order to properly represent his clients.

18The hearing proceeded before Ms. Beckett on May 9, 2005. Ms. Beckett addressed the applicant’s accommodation request at the outset of the hearing. Ms. Beckett advised the applicant that she had investigated a captionist, and that none were available for that day. She stated that she would be prepared to grant the applicant an adjournment for his clients only, but would go forward with the hearing relating to the applications filed on behalf of the larger group of tenants. In the alternative, Ms. Beckett offered the applicant an opportunity to proceed, if he wished, without a captionist but with the other accommodations she had offered previously.

19The applicant raised a concern that he wanted his client’s applications to be heard at the same time as the other applications, and confirmed to Ms. Beckett that he was not asking for an adjournment. Ms. Beckett repeated her offer to provide the applicant with an audio CD at the end of each hearing day, which she recognized was not a totally adequate accommodation for the applicant. The applicant stated that he would appreciate that, in the absence of having a captionist. Ms. Beckett also asked all of the parties to accommodate the applicant by speaking distinctly and not too quickly, and by keeping an eye on whether or not the applicant was able to keep up. Ms. Beckett also offered the applicant an opportunity to move closer if he wished.

20The applicant acknowledges that he was not forceful in his demand for accommodation before Ms. Beckett, but states that he should not have been put in the position of having to decide whether to adjourn his client’s matters in order to receive the accommodation to which he felt he was entitled and thereby lose the benefit of his client’s matters being heard at the same time as the corresponding applications by the larger group of tenants dealing with the same common area issues.

21The hearing proceeded for the remainder of the week to hear the witness evidence called by the parties. While an issue arose after the first day on May 9, 2005 that only part of the proceeding had been captured by the audio CD, subsequent CDs were not an issue nor were any further issue of accommodation raised by the applicant.

22Ms. Beckett set June 7, 2005 as the day to hear oral argument from the parties. On June 5, 2005, the applicant wrote to Ms. Beckett to request an adjournment of the hearing in order for the Rental Tribunal to provide him with a transcript of the CDs to assist him in preparing his oral argument.

23The hearing proceeded on June 7, 2005. At the hearing, the applicant took the position that he was entitled to a copy of the transcripts and he requested an adjournment until the transcripts could be produced. He stated that due to his hearing impairment, it was difficult for him to listen to the CDs and take notes at the same time, and this was interfering with his ability to properly prepare for oral argument. Ms. Beckett stated that she was more than happy to grant an adjournment to receive the applicant’s submissions at a later time after the issue of the transcripts had been sorted out. But she indicated that she would proceed to hear oral argument that day from the other parties in relation to the applications filed by the larger group of tenants. The applicant was invited by Ms. Beckett to remain at the hearing so that he could hear the arguments being made by the other parties. The applicant stated an intention to proceed with a judicial review of Ms. Beckett’s decision.

24In the end, the oral arguments by representatives of the other parties proceeded as scheduled on June 7, 2005 and the applicant was afforded an opportunity to file written submissions at a later time. The applicant also was provided with a copy of the written argument submitted by the representatives for the other parties, and a copy of a transcript of one portion of the hearing that had been prepared by the landlord at its own expense.

25Following the hearing, the applicant wrote several further letters to Ms. Beckett and others repeating his request for a transcript. Ultimately, by letter dated July 15, 2005, the Rental Tribunal’s Regional Manager wrote to the applicant in response to his correspondence to Ms. Beckett. In this letter, the Regional Manager stated that he was responding to the applicant on behalf of Ms. Beckett. The letter stated that the Rental Tribunal had considered the issue of accommodation raised by the applicant, and that no further accommodation would be made. The letter noted that Ms. Beckett had ensured that the Rental Tribunal provide the applicant with audio CDs and that the fees for these CDs had been waived by the Rental Tribunal, and that the applicant had been provided with a written copy of the arguments made by the other representatives at the June 7, 2005 hearing. The letter states that it is not the Rental Tribunal’s policy to provide transcripts, but that the applicant could use the CDs provided to have his own transcripts made. The applicant was directed by Ms. Beckett to file his written argument by August 5, 2005, with the other representatives having until August 12, 2005 to file their reply.

26The applicant filed his complaint with the Ontario Human Rights Commission on August 2, 2005 and sought a stay of the Rental Tribunal proceeding until the issues raised in his human rights complaint had been determined. The applicant did not file any written submissions with the Rental Tribunal by the August 5, 2005 deadline.

27Ms. Beckett issued her decision in the matters before her on September 12, 2005, in which she noted that proceedings before the Rental Tribunal are not stayed by the filing of a complaint with the Commission. Ms. Beckett’s decision found in favour of the tenants that they had been denied substantial enjoyment of the common areas of the buildings due to the landlord’s neglect, and established a separate process to address the issue of remedy.

28At the outset of her decision, Ms. Beckett expressly addressed the accommodation issues raised by the applicant, and stated as follows:

[The applicant] requested special accommodation be made for him because he is a person with hearing loss. Originally [the applicant] wanted the Tribunal to provide a ‘note taker’ to assist him in the hearing room. It is of course absolutely no problem for a representative to have a note taker and many do, especially in cases of some complexity. It is very common for advocates to want to be able to concentrate fully on witnesses and not be distracted by the necessity of taking notes. These note takers are not, however, provided by the Tribunal. Many agents and counsel who want to be able to concentrate fully on the proceedings, ask their clients to fulfill this role; while others bring an assistant to take notes.

Before the issue of providing a note-taker was addressed [the applicant] informed the Tribunal that he wanted the Tribunal to provide a captionist instead of a note taker. A captionist is a person with special qualifications and equipment who would, in real time, simultaneously transcribe proceedings and create a text document on a computer screen for [the applicant] to read. [The applicant] would be in the position of having to do two things at once: read and take notes, but presumably this would be easier for him than listening and taking notes. Because of the anticipated length of the hearing two captionists would be required. The Tribunal has a policy of providing sign language interpreters to accommodate persons with hearing impairment. This accommodation would not be useful to [the applicant] who does not understand American Sign Language. [The applicant], with the aid of a B.A.H.A. (Bone Anchored Hearing Aid) does hear; his problem is that he finds it a challenge to listen and take notes at the same time. To support his request [the applicant] submitted a hand written note on a prescription pad from his doctor saying: Above patient requires a Computized (sic) Note Taker Due to hearing loss.

On May 9, 2005, [the applicant] was informed that there was no captionist available and the issue of whether the Tribunal would have provided one had one been available became moot because [the applicant] elected to proceed so his cases could be heard with the other cases.

The following accommodations were extended to [the applicant]:

• all speakers were asked to speak clearly and in a tone of voice that could be heard by [the applicant].

• I monitored [the applicant’s] body language to assure myself that he was able to hear the proceedings.

• [the applicant] was asked to please alert me if he needed anything to be repeated.

• [the applicant] was invited to move his chair closer to the witness box.

• [the applicant] was given a CD of the hearings at the end of each hearing day.

Throughout the week-long hearing [the applicant] raised no further objections. The matter was adjourned to June 7, 2005 for closing arguments. On June 7, 2005 [the applicant] requested that the Tribunal provide him with a full transcript of the proceedings so that he could make a closing argument. I did not provide the transcript. I allowed [the applicant] an extended period of time to submit his argument and he was provided with a copy of the written arguments submitted by [the other representatives] and a CD of the day’s proceedings. On July 15, 2005, [the applicant] was informed that no further accommodation would be made by the Tribunal and he should submit his closing argument to the Tribunal by August 5, 2005. The other parties were given until August 12, 2005 to make any reply to [the applicant].

Stay

[The applicant] has chosen to bring a complaint to the Ontario Human Rights Commission and has failed to submit any closing argument on behalf of his clients. In his complaint to the Commission [the applicant] demands that this proceeding be halted until the Commission rules on his case. Throughout the proceedings [the applicant] called only one witness, his own client, and seldom examined or cross-examined witnesses called by the other agents. [The applicant] took very little part in the proceedings except to raise his own issue of accommodation. Proceedings before this Tribunal are not stayed by an application to the Human Rights Commission.

Finding

I find that [the applicant] failed to demonstrate that the accommodation afforded him by this Tribunal was inadequate to meet his needs. [The applicant] has chosen not to submit a closing argument. The other parties to this dispute would be prejudiced by a further delay in this matter which has already been delayed for two months awaiting his submission. This order will be issued and it is binding on all the parties to the dispute.

29Ms. Beckett’s decision proceeded to address the merits of the applications before her and, as stated above, found in favour of the tenants.

DECISION

30I next will address the preliminary issue raised by the respondents in relation to Ms. Beckett’s common law immunity. In light of my disposition of this issue, it is not necessary for me to consider the other preliminary issues raised.

Is the issue of Ms. Beckett’s immunity res judicata?

31The applicant argued before me that the issue of Ms. Beckett’s immunity from a proceeding under the Code already had been raised by the respondents before the Human Rights Commission and had been determined by the Commission in his favour. As a result, the applicant submits that this issue is res judicata and cannot be re-argued by the respondents before me.

32There is no question that the issue of Ms. Beckett’s immunity was raised by the respondents before the Commission, who sought to have the applicant’s complaint dismissed on the basis of s. 34 of the former Code, which afforded the Commission a discretion to not deal with a complaint in certain enumerated circumstances.

33In order for the doctrine of res judicata to apply, there must at the very least have been a decision that determined the issue. In this regard, the applicant relies upon a letter, dated December 2, 2005 from former counsel for the respondents to a Commission investigator, which states that the Commission investigator had refused to submit the respondents’ request for dismissal of the complaint to the Commissioners for a decision under s. 34 of the former Code and was instead referring the complaint for investigation. Counsel for the respondents rendered her strenuous objection to this action.

34At the hearing before me, the applicant requested a copy of any correspondence from the Commission received in response to the December 2, 2005 letter, and I was advised that no response had been received.

35Under the scheme of the former Code, a decision not to deal with a complaint under the old s. 34 had to be made by the “Commission”. Pursuant to s. 27(1) of the former Code, the Commission was composed of persons appointed by the Lieutenant Governor in Council. Section 27(6) of the former Code empowered the Commission to authorize any of its functions to be performed by a division of the Commission composed of at least three members of the Commission. No authority was provided under the former Code for the Commission to delegate its decision-making authority to an employee of the Commission.

36In order for a decision to have been made under s. 34 of the former Code, the issue would need to be considered either by the full Commission or by a division of three members of the Commission (referred to in the old Commission process as a “panel”). After consideration of the matter, the Commission would release brief reasons if its decision was not to deal with the complaint as required by s. 34(2) of the former Code, or alternatively would advise the parties that it would continue to deal with the complaint.

37There is no evidence before me that any such decision under s. 34 of the old Code was ever made by the Commission. Rather, all that is before me is a letter from former respondents’ counsel which records an opinion expressed by a Commission employee, apparently on legal advice, that he did not view the respondents’ claim of immunity as having merit and was referring the matter for investigation. That is not a decision or determination of the issue as required to support the application of the doctrine of res judicata.

38As a result, I find that no prior determination of the immunity issue had been made by the Commission, such that the doctrine of res judicata does not apply to the issue before me.

Is Ms. Beckett protected by judicial immunity at common law?

39The principle of judicial immunity is well-established at common law. As stated by Justice Cameron in Koita v. Toronto Police Service Board [2000] O.J. 407 aff’d [2001] O.J. 3461 (Div.Ct.):

[Justices of the Peace like Superior Court Judges] are immune from civil liability for acts or omissions in course of discharging their functions as Judges, if they honestly believe themselves to be acting within their jurisdiction, and even though acting with malice and contrary to good faith: Moirer and Boily v. Rivard 1985 CanLII 26 (SCC), [1985] 2 S.C.R. 716 at pp. 737 to 745, citing Sirros v. Moore [1975] 1 Q.B. 118 (C.A.) per Lord Denning M.R. and McC v. Mullan [1984] All E.R. 908 (H.L.) per Lord Bridge of Harwick at p. 916. The same principle with a comparable exception exists in the common law of the United States of America: Stump v. Sparkman (1977) 435 U.S. 349 (U.S.S.C.).

40The justification for judicial immunity was explained by Justice Cameron in the following terms, with a rather colourful but telling quotation from Lord Denning:

The reason for this immunity is to ensure that Judges may exercise their functions in complete independence of thought and judgment, free from fear of harassment by vexatious litigation and even the possibility of personal liability for damages. As Lord Denning said in Sirros at p. 739: “He should not have to turn the pages of his books with trembling fingers, asking himself: ‘If I do this, shall I be liable in damages?’

41In Taylor v. Attorney General of Canada (1997) 1997 CanLII 5900 (FC), 155 D.L.R.(4th) 740 (F.C.T.D.), it was held that the principle of judicial immunity holds even where a judge is alleged to have violated human rights legislation.

42This Tribunal has held in a number of decisions that the principle of judicial immunity extends to quasi-judicial decision-makers acting under statutory authority, including the Ontario Municipal Board (Robinson v. Ontario Municipal Board, 2010 HRTO 207), the Workplace Safety and Insurance Appeals Tribunal (Higginson v. Workplace Safety and Insurance Appeals Tribunal, 2010 HRTO 111), the Criminal Injuries Compensation Board (McWilliams v. Criminal Injuries Compensation Board, 2010 HRTO 937) and labour arbitrators (Cartier v. Nairn, 2009 HRTO 2208); (Hazel v. Ainsworth Engineered, 2009 HRTO 2180).

43In reaching its decision, this Tribunal in Cartier v. Nairn, supra, cited Justice Campbell in Agnew v. Ontario Association of Architects, (1987) 1987 CanLII 4030 (ON HCJ), 64 O.R.(2d) 8 at p.14, where it is stated:

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.

44The principle of judicial or quasi-judicial immunity applies not only to a final decision made by a judge or decision-maker, but also to preliminary or procedural decisions made in the course of a proceeding, including requests for adjournment and decisions relating to whom to hear from on an issue, in what order and for how long, which go equally to the heart of the decision-making process: see Robinson, supra.

45It is an open question before this Tribunal whether this principle of immunity applies to a statutory decision-maker when they are exercising purely administrative tasks or in cases where an action or statement by a statutory decision-maker is such that it cannot properly be considered part of their dispute resolution functions: see Hazel, supra at para. 97.

46In Hazel, supra, it is stated that (at para. 98):

The touchstone for the application of immunity is to ensure independence of the decision-making and dispute resolution process. Immunity applies to those functions that can legitimately be said to be integral to that process, and to the effective exercise of the duties of the arbitrator or mediator.

47Accordingly, in determining whether the principle of immunity applies to Ms. Beckett in the instant case, I need to consider whether the actions which form the substance of the Application before me formed part of her duties as a member of the Ontario Rental Housing Tribunal and can legitimately be said to be integral to her decision-making process. I find that they do.

48The first act complained of by the applicant is Ms. Beckett’s request for medical documentation to support his request for accommodation at the March 30, 2005 hearing. Before many quasi-judicial tribunals, there are a variety of ways for a party or her or his representative to make a request for accommodation. In the materials before me, I have been provided with a copy of the Policy on Accessibility and Human Rights for the current Landlord and Tenant Board, which details the various ways that a person can make a request for accommodation from Board staff. This policy is typical of accommodation policies at many tribunals.

49While the applicant testified before me that he initially raised his request for accommodation with a Rental Tribunal staff member, he made it clear in his evidence that he was not relying upon the staff response as a basis for his complaint. Rather, he was exclusively focusing his allegations on the actions of Ms. Beckett as a Rental Tribunal member.

50The evidence before me indicates that the first documentation of the applicant’s request for accommodation was by his letter to the Interim Chair, dated March 29, 2005, on the eve of the hearing scheduled for March 30, 2005. Rather than being capable of being addressed by Rental Tribunal staff, this accommodation request instead needed to be dealt with by Ms. Beckett as the adjudicator at the hearing the next day. As a result, in my view, the handling of the applicant’s request for accommodation and what material was required to support his request thereby became part of Ms. Beckett’s adjudicative function in determining how the applications before her were to proceed, and in my view falls with the scope of the immunity protection.

51The next action complained of is the accommodation requested by the applicant for the evidentiary part of the hearing commencing on May 9, 2005, which was to be provided with a captionist. This request was raised by the applicant in correspondence with Ms. Beckett and the Interim Chair. At the outset of the hearing on May 9, 2005, the applicant’s accommodation request expressly was raised by Ms. Beckett, who indicated that efforts to find an available captionist for the hearing had not been successful and who indicated that she was prepared to adjourn the applications on which the applicant was the tenants’ representative.

52I appreciate the applicant’s position that he should not have been placed in a position of choosing between taking an adjournment to obtain the accommodation sought which potentially may have been contrary to his clients’ litigation interests or proceeding without the accommodation he had requested. However, as a statutory decision-maker, Ms. Beckett was engaged in the process of deciding how best the matter before her should proceed, which necessarily included consideration of the interests of the other parties. This consideration of the interests of all parties in deciding how a hearing should proceed goes to the very heart of a tribunal member’s decision-making process.

53While Ms. Beckett no doubt was required to give due consideration to the applicant’s right under the Code to receive appropriate accommodation, the principle of immunity holds that she should not with “trembling fingers” (to quote Lord Denning) be put in the position of making such a decision in fear of her potential personal liability under the Code and thereby potentially prejudice the interests of the other parties before her. It was up to Ms. Beckett, as the statutory decision-maker, to fulfil her quasi-judicial role with integrity and with due consideration to the rights and interests of all parties before her, but without the fear of litigation against her ensuing from the judicial decision that she made.

54The final complaint raised by the applicant is that he was not afforded by the Rental Tribunal with a transcript of the evidentiary part of the hearing in order to assist him in preparing his final argument. While the Rental Tribunal’s decision not to provide him with a transcript was communicated to him by the Rental Tribunal’s Regional Manager, the letter clearly states that it was written on behalf of Ms. Beckett and sets out determinations made by Ms. Beckett as to by when the applicant was to file his written submissions and by when the other parties were to file any reply. This is reinforced by Ms. Beckett’s decision in this matter, dated September 14, 2005, in which she acknowledged the applicant’s request for a full transcript of the proceedings and stated, “I did not provide a transcript”.

55Once again, I find that the decision not to provide the applicant with a transcript was made by Ms. Beckett in the legitimate exercise of her judicial function in the context of making a determination about the receipt of final argument from the parties and in consideration of the various interests of all parties, including the interest of concluding the proceeding and being able to render her decision in a timely manner. Accordingly, I find that this decision by Ms. Beckett similarly falls with the scope of protection of the principle of judicial or quasi-judicial immunity.

56Accordingly, I find that the common law principle of judicial immunity, as interpreted and applied by this Tribunal and the courts to extend to statutory decision-makers, serves to protect the actions of and decisions made by Ms. Beckett which are at issue in this proceeding.

Is the common law principle of judicial immunity displaced by statute?

57The applicant submits that the common law principle of judicial immunity, if it applies to Ms. Beckett, had been displaced by the provisions of the then Tenant Protection Act, 1997, S.O. 1997, c. 24 (now repealed) which applied at the relevant time.

58I will address two provisions from that legislation. The first is s. 205(1) which provided at the relevant time:

No proceeding for damages shall be commenced against an investigator, an inspector, a member of the Tribunal, a lawyer for the Tribunal or an officer or employee of the Ministry or the Tribunal for any act done in good faith in the performance or intended performance of any duty or in the exercise or intended exercise of any power under this Act or for any neglect or default in the performance or exercise in good faith of such a duty or power.

59At the hearing, I indicated to the applicant that it was a well-established rule of statutory interpretation that a common law right cannot be superseded by legislation unless this is done expressly or by necessary implication. If authority is required for this proposition, it can be found in Pyke v. Tri Gro Enterprises Ltd. [1999] O.J. No. 3217 at para. 246, where it is stated that “there is also a general rule that a right should not be removed unless the statute does so specifically”.

60I invited the applicant to provide me with any authority to support his submission that a statutory provision of this nature, which is quite common in numerous pieces of legislation in this province, has been found to displace the common law principle of judicial immunity, and afforded the applicant an additional two weeks to provide me with any authority.

61In his written submissions received after the hearing, the applicant cites the Supreme Court of Canada’s well-known decision in Seneca College of Applied Arts and Technology v. Bhadauria 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181. This decision held that the Legislature’s creation of a comprehensive scheme under the Human Rights Code to deal with complaints of discrimination foreclosed the creation of a new common law tort of discrimination. In my view, I see this as an illustration of the principle I have articulated above, where the development of the common law in this area had been foreclosed by necessary implication as a result of legislation.

62The applicant also provided the decision of the Nova Scotia Supreme Court in Elliott v. Nova Scotia (Attorney General), (1999) 1999 CanLII 2431 (NS SC), 181 N.S.R.(2d) 32. In my view, this case offers no assistance to the applicant. This case dealt with a civil action commenced against the Nova Scotia Dairy Commission. While the enabling legislation for this Commission subsequently had been amended to include a provision providing the Commission with immunity from lawsuits, the court found that this provision was not in force at the relevant time and did not have retrospective effect. As a result, the Court did not need to rule on any issue as to whether the enactment of the statutory immunity provision had the effect of displacing any immunity at common law.

63In my view, s. 205(1) of the former Tenant Protection Act neither expressly supplants the common law principle of judicial immunity nor does it do so by necessary implication. Section 205(1) does afford protection to a member of the Tribunal, like Ms. Beckett, from proceedings for damages for any act performed in good faith in the exercise of her duties or powers. However, I note that members of a tribunal, in the course of their duties, may exercise a broad range of duties and powers, some of which may be judicial and some of which may not. This was recognized by this Tribunal in Hazel, supra, which distinguished between the judicial functions of a statutory decision-maker and purely administrative duties. As a result, s. 205(1) of the former Tenant Protection Act, by providing protection in relation to the exercise of a broader range of duties and powers, is broader in scope than the principle of judicial immunity. Accordingly, I do not find that this statutory provision displaces the common law principle of judicial immunity either expressly or by necessary implication.

64The applicant also relied upon s. 2(4) of the former Tenant Protection Act, which states:

If a provision of this Act conflicts with a provision of another Act, other than the Human Rights Code, the provision of this Act applies.

65As this provision is expressly restricted to provisions of the Tenant Protection Act and does not apply to the common law principle of judicial immunity, this statutory provision has no relevance to the issue before me.

66The applicant also raised before me s. 47(2) of the Code, which states:

Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.

67Once again, this provision is of no assistance to the applicant, as I have found that Ms. Beckett is protected by the common law principle of judicial or quasi-judicial immunity, and not on the basis of a provision of any Act that is in conflict with the Code.

Liability of the other respondents

68In addition to Ms. Beckett, Her Majesty the Queen in right of Ontario as represented by the Minister of Municipal Affairs and Housing (the “Ministry”) and the Landlord and Tenant Board (the “Board”) also are named as respondents to this Application.

69As the judicial actions and decisions of Ms. Beckett are the only actions at issue in this proceeding, neither the Ministry nor the Board can be held to be liable on the basis of actions and decisions which I have found to be protected by the principle of judicial or quasi-judicial immunity.

70Accordingly, for all of these reasons, the Application is dismissed in its entirety as against all respondents.