HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Constance Howes

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Municipal Affairs, Landlord and Tenant Board and Wayne Mackinnon

Respondents

DECISION

Adjudicator: Jim Dimovski

Date: September 7, 2010

Citation: 2010 HRTO 1822

Indexed as: Howes v. Ontario (Municipal Affairs)

AppearanceS BY

Constance Howes, Applicant ) On her own behalf )

Her Majesty the Queen in Right of Ontario ) as represented by the Ministry of Municipal ) Randy Schroeder, Counsel Affairs, Landlord and Tenant Board ) and Wayne Mackinnon, Respondents )

[1] This is an Application filed under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges the respondents subjected her to discrimination on the basis of disability in the provision of its services.

2On October 18, 2006, the applicant appeared before the respondent Landlord and Tenant Board (the Ontario Rental and Housing Tribunal (the “ORHT”) as it was known then) to respond to an application brought against her as a landlord. The applicant alleges that the personal respondent, Wayne MacKinnon, the ORHT Member presiding at the hearing, failed to accommodate her disability. She states on more than three occasions she advised him that she had a hearing loss but he “did not seem to care if I heard him or not”.

[3] The respondents took the position the Tribunal had no jurisdiction to consider the Application on the basis of adjudicative immunity and section 45.1 of the Code. In the alternative, they assert the applicant’s allegations do not substantiate an infringement of her Code-protected rights.

[4] A hearing was held on March 18, 2010, in Toronto. I heard testimony from the applicant. The parties agreed that I could rely on the statements contained in an undated letter addressed to this Tribunal from Shelley McLean, a general support services counsellor with the Canadian Hearing Society, in support of the Application. The personal respondent did not attend the hearing. I was provided with a transcript and recordings of the OHRT proceeding

[5] Even though the respondents had preliminary issues which went to this Tribunal’s jurisdiction to consider this Application, it was agreed that the merits of the Application would be heard first and I would hear submissions about jurisdiction at the conclusion of the hearing.

[6] There is no dispute that, at the time, the ORHT did not have an accessibility policy; the applicant did not inform the ORHT of her hearing loss or request any accommodation of her disability prior to her scheduled matter; and that the applicant first mentioned her hearing loss to the adjudicator approximately an hour after the matter had commenced and a witness had been examined.

[7] The applicant alleges the personal respondent made it difficult for her to hear and understand him when, on one occasion, he put his hands over his face, “rubbing his eyes”, while he spoke. In response, she alleges, he admonished her and became increasingly hostile towards her.

[8] Also some time near the conclusion of the hearing, which ran for approximately four hours, the personal respondent denied her the opportunity to cross-examine a witness. He allegedly told her she had “missed her chance” since she had been given the opportunity to do so earlier and had not taken it. In reply, she advised the personal respondent that she had a hearing loss and had not heard him earlier. He allegedly replied that he had told her and he would review the tape recording of the proceeding if she did not believe him.

[9] The respondents admit that the applicant was correct; she had heard the adjudicator but he had failed to remember he had told the applicant she would have an opportunity to cross-examine the applicant later in the proceeding. In the end, she claims her OHRT proceeding was unfair and she had been degraded and humiliated because of her disability.

ANALYSIS

[10] After reviewing all the evidence and considering the parties’ submissions, I dismiss the Application for the reasons set out below.

Does this Tribunal have jurisdiction to consider the Application?

Adjudicative Immunity

[11] The respondents submitted that the Application as against the OHRT’s adjudicator is barred in accordance with the doctrine of adjudicative immunity. They submit the control or management of a hearing is at the core of an adjudicator’s function. They relied on [Hazel v. Ainsworth Engineered, 2009 HRTO 2180](https://www.minicounsel.ca/hrto/2009/2180), [Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595](https://www.minicounsel.ca/hrto/2009/1595), and [Cartier v. Nairn, 2009 HRTO 2208](https://www.minicounsel.ca/hrto/2009/2208). .

[12] The applicant’s position was that the personal respondent’s behaviour during the OHRT proceeding amounted to discrimination and that this Tribunal has jurisdiction to consider her Application in accordance with [Director, Ontario Disability Support Program v. Tranchemontagne, 2009 CanLII 18295 (ON SCDC)](https://www.minicounsel.ca/odc/2009/18295), 95 O.R. (3d) 327 (ON S.C.D.C.). She also relied on publications from the Ontario Human Rights Commission: Guide To Your Rights and Responsibilities under the Human Rights Code (revised: January 15, 2009) and Policy and guidelines on disability and the duty to accommodate (revised November 23, 2000).

[13] The Tribunal has held that it has no jurisdiction to hear applications against adjudicators of tribunals based on the execution of their duties based on the doctrine of judicial immunity: see Cartier, supra; Hazel, supra. A helpful and succinct overview of the principle was provided in Cartier:

The 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.

The principle of judicial immunity has been applied to protect judicial actors from human rights complaints. In Taylor v. Canada (Attorney General) 2000 CanLII 17120 (F.C.A.) 2000 CanLII 17120 (F.C.A.), (2000), 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?”

Recently, 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.

The 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.

Moreover, 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 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....

[14] The respondents also submit that the doctrine of adjudicative immunity applies to bar any allegations as against the organisational respondents. In my view this would depend on the nature of such allegations. As the Tribunal went on to note in Hazel, supra:

The final distinction, I would note, between labour arbitrators and judges or tribunal adjudicators is that a labour arbitrator, in addition to adjudicating or mediating, generally performs a number of administrative tasks associated with providing the service, such as setting up hearings and sending out notices. In a tribunal or court, such functions are generally carried out by the institution, which arguably would have no claim to judicial or adjudicative immunity.

Courts and other public adjudicative bodies, whether because of obligations under the Code or otherwise, have recognized the necessity of ensuring that their facilities and processes are accessible and barrier-free. They have engaged in a number of initiatives, such as consultations, the development and publication of accessibility and accommodation policies, and have required training for staff and adjudicators. As institutional service providers, they have taken steps to ensure that parties, counsel and witnesses can fully and effectively participate in the dispute resolution processes, regardless of disability. Applying the principle of immunity to individual adjudicators in this context does not completely negate responsibility and accountability for accessible service provisions under the Code.

Having considered the arguments and jurisprudence, I accept that arbitrators and mediators are entitled to immunity from human rights claims, at least with respect to the exercise of their decision-making and dispute resolution functions. Regarding arbitrators, I accept that in considering evidence and submissions, and making decisions, they are exercising a quasi-judicial function comparable to that of judges, and are therefore entitled to immunity.

[15] Thus, I need to decide whether the alleged acts occurred in the context of the personal respondent carrying out his adjudicative duties or are more properly seen as administration of the OHRT’s services.

[16] The applicant advised the adjudicator on three specific occasions with regard to her hearing loss. For example, after the applicant requested that a witness “speak up” the personal respondent replied “[y]es, and I have to pick this up on the recorder”. As a result of the adjudicator’s intervention, the witness committed to speaking a “little louder”. The applicant did not make any further complaints regarding her inability to hear the witness. As such, I am satisfied that where the applicant brought issues of accommodation of her hearing loss to the personal respondent’s attention he took appropriate steps to address them.

[17] But even if the personal respondent had not taken appropriate steps, he was solely responsible for the management of the proceeding and his responses and directions to parties and witnesses all fall within the scope of his adjudicative function. While the refusal to permit the applicant to cross-examine the witness may have seemed very unfair to her, this was an adjudicative decision. The allegations made against the personal respondent adjudicator were directly related to his management of evidence and of the parties’ conduct in the course of the proceeding, which I accept as part of the duties necessary in carrying out proceedings.

[18] Accordingly, I am satisfied that the allegations against the personal respondent are not within the Tribunal’s jurisdiction given the doctrine of judicial immunity.

[19] With respect to the Application as against the organisational respondents, the applicant’s allegations relate entirely to the personal respondent’s actions and statements. As the judicial actions and decisions of personal respondent 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 .

[20] Given these findings it is not necessary for me to address the respondents’ other preliminary arguments.

[21] In all the circumstances, this Application is dismissed.