Robinson v. Ontario Municipal Board, 2010 HRTO 207

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Wilma Robinson Applicant

-and-

Ontario Municipal Board, Marie Hubbard, Robert Owen and Hannah Bissessar Respondents

AND BETWEEN:

T. Lindsay Robinson Applicant

-and-

Ontario Municipal Board, Marie Hubbard, Robert Owen and Hannah Bissessar Respondents

AND BETWEEN:

Dianne Robinson Applicant

-and-

Ontario Municipal Board, Marie Hubbard, Robert Owen and Mark Michaels Respondents

INTERIM Decision

Adjudicator: David Muir Date: January 28, 2010 Citation: 2010 HRTO 207 Indexed as: Robinson v. Ontario Municipal Board

Written Submissions By

Wilma Robinson ) Dianne Robinson, Representative T. Lidnsay Robinson ) Dianne Robinson, Applicants )

Ontario Municipal Board ) Marie Hubbard ) Stan Floras, Counsel Robert Owen ) Hannah Bissessar ) Mark Michaels, Respondents )

1These are three Applications filed June 30, 2009 under section 53(5) of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in services.

2The human rights complaints underlying these Applications were filed with the Ontario Human Rights Commission in 2006. Two of the three complaints allege that the applicants, who were applicants before the respondent Ontario Municipal Board (OMB), experienced discrimination on the basis of age and disability when the OMB refused or failed to take into account the applicant’s age and alleged disabilities when refusing their request for adjournment of a hearing before the OMB. The result, the applicants allege, was that they could not participate in the hearing. The third Application is in relation to a complaint brought by the representative of the other two applicants before the OMB and alleges discrimination on the basis of sex in the manner in which she was treated during the hearing wherein the request for an adjournment was considered and denied.

3The respondents state that the Tribunal has no jurisdiction with respect to decisions and orders of the OMB by virtue of the doctrine of judicial independence and judicial immunity.

4The respondents also state that the respondents Hannah Bissessar and Mark Micheals are protected from personal liability under pursuant to section 33 of the Ontario Municipal Board Act, R.S.O. 1990, c. O.28 (the Act) which provides:

No member of the Board of its secretary or any of its staff is personally liable for anything done by it or by him or her under the authority of this or any other Act.

The respondents also state that the facts alleged in the complaints underlying these Applications all involve the adjudicative functions of the OMB in particular the refusal to grant an adjournment. These individual respondents as employees of the respondent Board do not make decisions such as the one under attack.

5The respondents also state that the Applications amount to a collateral attack on the decision making process and the decision of the respondent OMB and its Vice-Chair Robert Owens. The respondents state that an attack on the decision of the respondent OMB can only be made by way of an appeal pursuant to section 96 of the Act.

6The applicants say that the doctrine of judicial immunity does not apply to the OMB and its Members because they are not judges. The applicants state that the OMB provides a public forum to hear appeals related to land use planning and other municipal matters. The OMB, its Members and staff are public servants and are accountable for their actions and treatment of the public. The applicants state that it is the responsibility of the Tribunal to promote and advance respect for human rights in Ontario, to protect the public interest and to identify and promote the elimination of discriminatory practices. The applicants state that in order for it to properly exercise this jurisdiction the Tribunal is obliged to hear applications brought before it regardless of the respondents’ claim to immunity. Finally the applicants state that their complaints were received by the Ontario Human Rights Commission and thoroughly vetted.

7The applicants do not dispute and, in any event, I find that the OMB is an independent statutory tribunal with exclusive jurisdiction to determine all matters within its jurisdiction including interlocutory decisions such as adjournment requests. Its Members are appointed by Order-in-Council by the Lieutenant-Governor in Council, I also find that although there are differences in the content of the complaints underlying these three Applications in substance they all relate entirely to the adjudicative functions of the OMB and its Members. There are no allegations made against the OMB’s employees and I find that as employees of the OMB they do not make decisions and do not participate in the decision making process.

8There have been a considerable number of applications before the Tribunal that have considered the issues raised by the respondents here. The Tribunal has made it clear that it does not have jurisdiction to review decisions of other statutory tribunals on the basis that a decision of a statutory decision is not a service: see for example Baird v. WSIAT, 2009 HRTO 99; Christianson v. Social Benefits Tribunal, 2009 HRTO 886. Other decisions, while agreeing with the results in Baird, supra and other decisions coming to similar conclusions, have questioned whether it is correct that a decision of a tribunal is not a service within the meaning of section 1 of the Code. As the parties have not framed the issue here around the meaning of services I do not intend to enter this debate.

9More recently there have been decisions of the Tribunal which have accepted that the doctrine of judicial immunity does apply to statutory tribunals and their members: see Hazel v. Ainsworth Engineered, 2009 HRTO 2180 and Cartier v. Nairn. 2009 HRTO 2008. In Cartier, the Tribunal concluded that the rule or doctrine applied to a labour arbitrator as an adjudicator of a grievance. In Hazel, the Tribunal took a similar approach and determined that a labour arbitrator was immune with respect to the exercise of the decision-making and dispute resolution functions including mediation of a grievance before him.

10The reasons in Cartier, supra are instructive and I adopt them as a correct statement of the law:

12The 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.

13The 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), 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?”

14Recently, 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, 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.

15The 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.

16Moreover, 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), 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. In that case, there had been an attempt to subpoena members of a committee of the Ontario Association of Architects about a determination they had made pursuant to decision-making authority accorded them under the Architects Act, 1984, S.O. 1984, c. 12:

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

17In Agnew, supra, Justice Campbell goes on to describe how judicial immunity ensures that adjudicative decisions are reviewed through the proper channels of review and appeal, instead of by process of cross-examination (at para. 28):

Apart from the practical consideration that tribunal members and judges would spend more time testifying about their decisions than making them, their compellability would be inconsistent with any system of finality of decisions. No decision and a fortiori no record, would be really final until the judge or tribunal member had been cross-examined about his decision. Instead of review by appeal or extraordinary remedy, a system would grow up of review by cross-examination. In the case of a specialized tribunal representing different interests the mischief would be even greater because the process of discussion and compromise among different points of view would not work if stripped of its confidentiality.

19Judicial immunity has also been extended to members of the Immigration and Refugee Board, Ermina v. Canada (Minister of Citizenship and Immigration 1998 CanLII 8969 (F.C.), (1998), 167 D.L.R. (4th) 764 (F.C.); the Law Society of Upper Canada in respect of its decision-making disciplinary processes and investigative functions, Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; and members of provincial commissions of public inquiry, Morier v. Rivard, 1985 CanLII 26 (S.C.C.), [1985] 2 S.C.R. 716.

11Turning to the facts of these Applications, as set out above the allegations here all relate to the conduct of the respondent OMB, a statutory tribunal, and its Member, an independent statutory decision maker appointed by Order-in-Council, in the course of an interlocutory proceeding dealing with an adjournment request brought by two of the applicants and their representative in the proceeding before the OMB. The complaints in Applications TR-0911-09 and TR-0912-09 all concern the results of the adjudication – the decision. The decision of an administrative Tribunal has been found to be not something that this Tribunal will consider on a number of grounds, including now the doctrine of judicial immunity.

12The complaint underlying TR-0913-09 is somewhat different in that the allegations here allege differential treatment of the applicant by the respondent Owen on the basis of sex. The allegation here is essentially that, in contrast with the other participants at the hearing to consider the adjournment request, all of whom were male, the applicant was not able to participate fully in the hearing. However, it seems to me that an adjudicator’s decisions about whom to hear from on an issue, in what order and for how long which seems to be at issue in the complaint, go to the very heart of the decision making process and as such are protected by the doctrine of judicial immunity for all of the policy reasons discussed in the cases above. I find that the doctrine of judicial immunity applies to these circumstances and accordingly the Applications to the extent that they are an attempt to impute the conduct of Members at the hearing or the decision are all dismissed.

13Although named as a respondent in the Application there are no allegations made against Marie Hubbard, whose role in this matter was to determine a request to review the decision of respondent Owen. I find that the doctrine of judicial immunity applies to this decision as well and the Tribunal has no jurisdiction to consider any allegation that might have been made about this decision making process for all of the reasons set out above. For that reason as well as the fact that there are no allegations made about Marie Hubbard these Applications as they relate to this respondent are dismissed.

14The respondents Hannah Bissessar and Mark Michaels are said to be employees of the OMB, and according to the respondents protected by an immunity provision of the Act. It does appear that section 33 of the Act would apply to protect these employees from personal liability for any thing done under the authority of that Act. To the extent that any liability on the part of these respondents is alleged to flow from the conduct of the Member in the hearing or his decision the Applications are dismissed because those are actions or things done under the authority of the Act.

15The applicants did not reply to the respondents’ positions on this point. I would note at this stage that the personal liability of these individuals for anything done under the authority of the Act might not be a complete answer if the allegations were in respect of actions beyond or outside of the authority of the Act. Equally, while the section might insulate the individuals personally it does not necessarily follow that the respondent Board might not be found to be liable for the conduct of its employees in the manner in which they interact with the public in the course of their duties. All of which is to say only that the effect of section 33 of the Act must be considered in light of the allegations made. However as I have indicated already there appear to be no allegations made in respect of these individuals – the allegations in the complaints relate entirely to the conduct of the hearing about the adjournment request and the resulting decision.

16It seems to me that having dismissed these Applications as they relate to the allegations respecting the decision making process and the resulting decision, on the allegations contained in the complaints there is nothing left of these disputes. If the applicants believe that there are any allegations in the complaints that are not disposed of by this decision they may make submissions setting out what those remaining allegations are and what remedies might be sought in light of section 33 of the Act as set out above.

ORDER

17I make the following Orders:

a. These Applications as they relate to the conduct of the respondents Hubbard and Owen are dismissed.

b. The applicants will provide their submissions, if any, respecting any remaining allegations of conduct by individual respondents not dispose of by this decision which they wish to pursue. Such submissions shall be delivered to the respondents and filed with the Tribunal within 30 days of this decision failing which these Applications will be dismissed in their entirety.

c. In the event that the applicants make submissions as directed in paragraph (b) above, the respondents will deliver and file any reply submissions within 20 days of receipt of the applicants’ submission.

18I am seized of these Applications.