HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Michael Zubiak
Applicant
-and-
Criminal Injuries Compensation Board, Ronaq Massey and Maria Tassou
Respondents
DECISION
Adjudicator: Naomi Overend
Indexed as: Zubiak v. Criminal Injuries Compensation Board
APPEARANCES
Michael Zubiak, Applicant ) Kat Zubiak, Representative
Criminal Injuries Compensation Board, )
Ronaq Massey and Maria Tassou, ) Sonal Gandhi, Counsel
Respondents )
1The applicant filed this Application on August 7, 2009, under s. 34 of the Human Rights Code, R.S.O.1990, c. H.19, as amended, (the “Code”) alleging discrimination in the provision of goods, services and facilities on the basis of disability. The applicant alleges that he was treated in a discriminatory manner when he appeared before the Criminal Injuries Compensation Board (“CICB”) in October 2007.
2The respondents filed a Request for Order During Proceedings (Form 10) asking that the Application be dismissed for the following reasons:
The named individual respondents are adjudicators of the CICB and are, thus, “subject to immunity akin to judges;”
The subject matter of the Application is, in essence, a request for “review and variation of the decision” of the CICB, which is a function that ought to be carried out in an appeal to the Divisional Court. Previous jurisprudence of this Tribunal has indicated that such matters are not properly within the jurisdiction of this Tribunal; and
This Application was filed in excess of the one year time limit set out in the Code, without explanation, and the respondents’ respective abilities to recall the events has been affected by the passage of time.
3It was not possible to determine these issues on the basis of the written material before the Tribunal, and in an Interim Decision in this matter, 2010 HRTO 629, I ordered that the parties be given the opportunity to make oral submissions on the respondents’ request to dismiss this Application at a half-day hearing. This hearing took place on September 20, 2010.
BACKGROUND
4The applicant and his wife were the victims of what all the parties agree was a brutal attack in their home by strangers, from which the applicant sustained substantial injuries. He has undergone three facial restoration surgeries and indicates that he is still in a considerable amount of pain as well as having psychological and cognitive difficulties.
5In August 2006, the applicant and his wife applied to the CICB for compensation for the injuries arising from the attack. On October 1, 2007, the CICB held a hearing before a panel of three adjudicators, two of whom are named as individual respondents in the Application before this Tribunal. The third, Anne Stanfield, was named in the Application as the contact person for the CICB. The applicant does not distinguish between the panel members, whom he collectively refers to as the “3-person board” in his Application.
6The applicant alleges that the manner in which the panel conducted themselves was unfair and discriminatory. He alleges that they could see that he was in no mental state to represent himself, but they did not tell him that he should have a lawyer present to assist him with his hearing. Moreover, they did not question him or provide him with any information about the potential benefits he could receive under the legislation, but instead listened passively while he made his presentation.
7The applicant further alleges that he was hard to understand while he was making his submissions, owing to a new set of ill-fitting dentures, but at no point did the panel ask him to repeat himself. He asserts that his wife told him that after he left the hearing room and she started making her presentation, the panel become much more engaged in what she said, and showed compassion.
8In an order dated November 28, 2007, the CICB ordered payment of $25,000.00 to the applicant for pain and suffering, which represents the maximum amount for a lump sum allowable under the governing legislation. In a separate order, his wife received $15,000.00, an amount the applicant views as inadequate in terms of what his wife endured.
9The applicant states that he subsequently learned through an article in the Toronto Star that he was entitled to a living allowance to a maximum of $365,000.00, that others have received higher lump sum payments, and that the CICB could have made an order to pay for further education.
10On June 23, 2008, the applicant wrote to the CICB to say that he realized after reading an article in the paper (a different one than the one referenced above) that he and his wife were eligible for monthly payments of up to $1,000.00 per month. He outlined the financial situation he and his wife found themselves in, and then stated that he would like to appeal the earlier decision “for a more suitable compensation package that will deal the long term after effects of our injuries.”
11The CICB wrote to the applicant on July 30, 2008 indicating that a decision of a two-person (or more) panel is final and that the decision must be appealed to the Divisional Court within 30 days of receipt of the decision on a point of law. The CICB indicated, however, that it would consent to an extension of the time limit for filing the appeal to August 31, 2008, subject to the approval of the Court.
12The applicant did not pursue the appeal, but instead filed this Application a year later on August 7, 2009.
DECISION AND ANALYSIS
Judicial/Quasi-Judicial Immunity
13The doctrine of judicial immunity allows those who are making judicial or quasi-judicial decisions the freedom to “execute their decision-making duties with independence and without fear of consequences” by prohibiting legal proceedings against them, including human rights applications: Cartier v. Nairn, 2009 HRTO 2208 at para. 12.
14The decision maker must be making a judicial or quasi-judicial (as opposed to administrative) decision in order to be protected by judicial immunity. This Tribunal has held that a number of tribunals, including the CICB, are quasi-judicial decision makers: McWilliams v. Criminal Injuries Compensation Board, 2010 HRTO 937.
15The legislation covering the proceedings before the CICB, the Compensation for Victims of Crime Act, R.S.O. 1990 c. C.24, specifically sets out that the chair of the CICB shall refer applications to a hearing, to which the applicant and all other interested parties shall have notice, and which is open to the public. The hearing panel is empowered to make orders for the payment of compensation, either in the form of a lump sum or periodic payments.
16The applicant argues that the panel members are “simply clerks” and, therefore, not entitled to immunity. He further asserts that to be akin to a judge, the decision-maker must do more than simply award compensation – they must also have the authority to penalize individuals, which the CICB does not. However, the authority to penalize has not been applied as a necessary precondition for distinguishing those who are protected by judicial immunity from those who are not.
17I concur with the respondents that the doctrine of judicial immunity applies in this case. The applicant’s concerns are with the CICB and the individual respondents solely while they were presiding over and conducting a hearing in relation to his claim for compensation. In each of the instances in which he alleges that the CICB (and/or the individual members of the CICB assigned to hear his case) discriminated against him or failed to accommodate his disability, the CICB was exercising its function as a quasi-judicial decision maker.
18Accordingly, this Application is dismissed. It is unnecessary for me to determine whether the CICB is providing a service within the meaning of the Code, or whether the Application should be dismissed as being out of time. I would note, parenthetically, that the Application was filed 20 months after the Order of the CICB was released and that the applicant has not attempted to provide an explanation for why this delay was incurred in good faith.
Dated at Toronto, this 10th day of November, 2010.
”signed by”____________
Naomi Overend
Vice-chair