Howes v. Ontario (Municipal Affairs), 2010 HRTO 2151

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

Reconsideration DECISION

Adjudicator: David Muir

Date: October 25, 2010

Citation: 2010 HRTO 2151

Indexed as: Howes v. Ontario (Municipal Affairs)

1This 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”). A hearing was held in this matter and the Application was dismissed with reasons in 2010 HRTO 1822. The Tribunal concluded that the individual respondent had provided accommodations to the applicant when requested to do so and went on to conclude that even if this had not been the case the Tribunal had no jurisdiction to consider the alleged conduct of the respondents by reason of the doctrine of judicial immunity.

2The applicant had alleged that the respondents subjected her to discrimination on the basis of disability in the provision of its services. On October 18, 2006, the applicant appeared before the respondent Landlord and Tenant Board (the Ontario Rental 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 during the course of the hearing.

3On September 17, 2010 the applicant filed a Request for Reconsideration (Request) of Decision 2009 HRTO 1628 under section 45.7 of the Ontario Human Rights Code.

45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

4The Tribunal’s Rules of Procedure for Transitional Applications under Sections 53(3) and 53(5) of the Human Rights Code (the Rules) provide that any party may request reconsideration of a decision in accordance with Rule 25.5 which provides as follows:

A Request for Reconsideration will not be granted unless the Tribunal is satisfied that:

a. there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

b. the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

c. the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

d. other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

5On October 6, 2010 the Ontario Human Rights Commission (the Commission) sought leave to intervene in order to make submissions on the reconsideration Request. The Commission obtained the consent of the applicant. The Tribunal advised the respondents that they need not respond to the Request until invited to do so. Accordingly no submissions have been received from the other parties to the Application.

REQUEST TO INTERVENE

6Rule 14.1 provides as follows:

The Tribunal may allow a person, organization or the Commission to intervene in any case at any time on such terms as the Tribunal may determine. The Tribunal will determine the extent to which an intervenor will be permitted to participate in a proceeding.

7The Commission states that the core issue raised by the Request, which it has framed as the jurisdiction of the Tribunal over administrative decisions made by adjudicators relating to accommodation requests, is a matter of significant public importance. The Commission states that the decision of the Tribunal as it stands “may have a significant limiting impact on Ontarians seeking accommodation and full participation while involved in an administrative adjudicative process.” The Commission’s mandate and functions includes a fundamental public interest role, the promotion and advancement of human rights in Ontario, as well as the promotion of the elimination of discriminatory practices, accordingly, the Commission states that the Tribunal should grant it intervention on this Request.

8Assuming without deciding that it is appropriate to allow the intervention of the Commission at this stage of the proceeding I have considered its submissions in dealing with this Request.

THE REQUEST

9The applicant and the Commission both rely on the factors set out in paragraphs (c) and (d) above and state that the Decision is in conflict with established jurisprudence and involves a matter of general or public importance and that other factors exist which outweigh the public interest in the finality of Tribunal decisions. Neither the applicant nor the Commission took issue with the Member’s finding of fact that when the applicant made a request for accomodation during the hearing, the presiding adjudicator took steps to accommodate the applicant.

10The applicant’s submissions merely reiterate the argument she made at the hearing. The applicant’s submissions do not address the central issue in the case and the basis for the Decision, that being the doctrine of judicial immunity. The applicant evidently disagrees with the result but that is not a basis for a reconsideration request.

11The Commission makes a number of additional submissions. I have considered those submissions but note at this stage that the submissions made by the Commission are largely an attempt to re-argue the case and seem to treat this reconsideration request as if it were an appeal or an Application for Judicial Review. A reconsideration is neither of those things.

12For example, the Commission states that the Tribunal must be correct on questions of jurisdiction. The Commission also states that the Tribunal has previously held that it would only dismiss an application if it was “plain and obvious” that it is outside its jurisdiction. Finally in this same vein the Commission states that the application of judicial immunity to the circumstances obtaining in this case disregards the special status of human rights legislation which requires a liberal and purposive interpretation.

13The Commission has made similar arguments in other cases. In particular in Lewis v. Re/Max Rouge River Realty, 2010 HRTO 1977 Acting Chair Wright dealt with the submission as follows:

The Commission argues that the Tribunal must be “correct” on questions of jurisdiction, citing Dunsmuir v. New Brunswick, 2008 SCC 9, 2008 SCC 9. A Request for Reconsideration under the Tribunal’s rules is neither an appeal nor an Application for Judicial Review. There are very particular circumstances in which reconsideration is granted, even where the decision is about the Tribunal’s jurisdiction. Reconsideration is not an opportunity to reargue one’s case, as the Commission attempts to do here: Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, 2008 HRTO 34.

14I also find that the Commission’s reliance on the “plain and obvious” standard as the appropriate one to apply to questions of jurisdiction is inappropriate in the context of a reconsideration – this is not an appeal. The argument is also inapt for reasons acknowledged in the Commission’s submissions. That standard is appropriately applied by the Tribunal at an early stage of the proceeding where the jurisdictional question is being considered on the basis of written submissions only, not after an oral hearing where evidence has been called and full argument by the parties has been made.

15The Commission does state that the Decision misinterprets the principles of judicial and adjudicative immunity and is in conflict with established jurisprudence on this issue. In this regard the Commission states that the application of the broad common law of judicial immunity to tribunal members is not well settled. The Commission relies on the following passage from the Tribunal’s decision in Hazel v. Ainsworth Engineered, 2009 HRTO 2180, at paragraphs 81 and 86, with emphases added by the Commission:

While the principle of immunity for judges is well-established in Canadian law, the question of whether this common law immunity also applies to other decision-makers, such as administrative tribunal members and arbitrators, does not appear as well-settled.

[…] one must proceed cautiously before finding there should be a broad and absolute immunity granted to arbitrators and mediators, who play an important role in that service.

16The Commission also states that the Tribunal has in a prior decision determined that statutory tribunals may not enjoy a blanket immunity and that it is possible that a statutory tribunal could run afoul of the Code (see Lindberg v. Workplace Safety and Insurance Board, 2009 HRTO 463.

17Finally the Commission states that a distinction must be drawn between two types of immunity. The Commission relied on the following passage from Mackeigan v. Hickman 1989 CanLII 40 (SCC), [1989] 2 S.C.R. 796:

[…] there is an important distinction to be drawn between the two types of judicial immunity. There is first the privilege of the judiciary not to be questioned as to the decisions they have made on cases. This adjudicative privilege is of fundamental importance and is absolute in nature. Secondly, there is the privilege as to the administration of the courts. This administrative privilege is not of the same fundamental importance and is qualified in nature. (emphasis added)

18The Commission states that where an applicant’s allegations relate to the administrative process in which they claim the right to participate - specifically allegations that the adjudicator did not appropriately respond to her requests for accommodation in the hearing, and not the outcome or the decision, the Tribunal has jurisdiction over the Application.

19The position of the Commission is essentially that the doctrine of judicial immunity as it relates to a quasi-judicial adjudicator only applies to the final decision and nothing else, and in particular not the conduct of the adjudicator in the hearing room. In support of this latter proposition the Commission relied on the Tribunal’s decision in Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595 and Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 9.

ANALYSIS:

20I have considered the submissions of the Commission and I find that the Request must be dismissed.

21Firstly, as noted above neither of the parties requesting reconsideration took issue with the Member’s conclusion that the individual respondent had provided accommodation to the applicant. On this basis alone the Request should be dismissed.

22However as the Member did, I have considered the submissions on the legal issues raised, in particular the submissions of the Commission that the Decision is inconsistent with the jurisprudence on the application of the doctrine of judicial immunity to the circumstances.

23I accept the Commission’s submission, for purposes of this determination, that the core issue in this case is a matter of general or public importance, however I find that the Decision in question is not in conflict with established jurisprudence of the Tribunal or the case law generally and there are no other factors present that outweigh the public interest in the finality of Tribunal decisions.

24The Commission takes the position that a line must be drawn between the adjudicative function and the administration of the adjudicative services which support the adjudicative function. The Commission goes on to state that the line between the adjudicative function to which the immunity may apply and the administration of the adjudicative service to which the immunity does not apply is drawn around the final decision of the adjudicator. To put it another way, the Commission states that judicial immunity applies only to the final decision of the adjudicator or Tribunal but not to any of the multitude of adjudicative decisions made during the course of a hearing leading up to the final decision. Accordingly the Commission disagrees with the Member’s conclusion that the conduct alleged by the applicant related solely to his adjudicative functions and not the administration of the adjudicative services offered and accordingly was outside of the Tribunal’s jurisdiction.

25The Commission’s position, in my view, misapprehends the law as it has been articulated in the cases cited and the Tribunal’s decisions to date. As I understand the jurisprudence including the Tribunal decisions which have considered this issue, allegations with respect to the conduct of a quasi-judicial decision maker while presiding over and related to the conduct of a hearing are protected by judicial immunity and consequently are not within the jurisdiction of the Tribunal (see for example Cartier v. Nairn, 2009 HRTO 2208 and the cases cited therein). This is precisely the conclusion the Member came to with respect to the alleged conduct of the individual respondent and because it was the only impugned conduct alleged by the applicant there was no other basis to find liability on the part of the Tribunal. The Decision is not inconsistent with established jurisprudence.

26For all of these reasons the Request is dismissed.