Babineau v. Ontario (Municipal Affairs and Housing), 2010 HRTO 2519

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

RECONSIDERATION DECISION

Adjudicator: Mark Hart Date: December 21, 2010 Citation: 2010 HRTO 2519 Indexed as: Babineau v. Ontario (Municipal Affairs and Housing)

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Decision 2010 HRTO 1777 dated August 30, 2010, which dismissed this Application on the basis of judicial or quasi-judicial immunity.

2On September 27, 2010, the applicant filed a Request for Reconsideration of the Tribunal’s Decision. On consent, the applicant sought and was granted an extension to October 18, 2010 to file an amended Request for Reconsideration, which he did. This Decision will address the submissions made by the applicant in his amended Request.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended, (the “Code”) provides as follows:

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.

4Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider a final decision in accordance with the Tribunal’s Rules. The Tribunal has issued rules governing such requests as well as a Practice Direction to provide guidance to the community on the Tribunal’s exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended June 2008).

5The Tribunal’s Practice Direction on Reconsideration begins with the following statements:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

6As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to re-open and reconsider its own decisions, it is not obliged to do so. It may decide when reconsideration is advisable, both through the promulgation of rules setting out conditions for the exercise of its discretion, and through the application of its discretion on a case-by-case basis.

7In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 34, the Tribunal stated that reconsideration is not an opportunity to re-argue a case. Once the parties to an Application have had the opportunity to present their evidence and arguments to the Tribunal, and the Tribunal has made a decision disposing of the issues, parties are entitled to treat the matter as closed, subject to limited exceptions.

8The Tribunal’s Rules of Procedure for Transitional Applications provide that any party may request reconsideration of a final decision in accordance with the Rules. Rule 25.5 of the Rules provides:

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.

9As a result, I need to determine whether the material filed by the applicant in support of his request for reconsideration satisfies any of the criteria set out in Rule 25.5. The applicant relies upon criteria (c) and (d) identified in Rule 25.5, namely that my Decision is in conflict with established jurisprudence and involves a matter of public importance and that other factors exist that outweigh the public interest in the finality of Tribunal decisions.

10In his submissions, the applicant first makes reference to having been diagnosed with a mental health issue. I was aware of this from materials that the applicant had filed with the Tribunal. The applicant did not, however, request any accommodation at the hearing in relation to this mental health issue, nor does he state in his submissions on reconsideration that any such accommodation was required. While he does make reference in his submissions to appearing at the hearing under “duress”, he once again connects this only to the judicial review application that he had filed with the Divisional Court and the well-established principle that a person is required to exhaust all internal remedies prior to proceeding with judicial review. As a result, the applicant’s reference to his mental health issue does not provide any proper basis upon which to reconsider my Decision.

11The applicant next makes reference to the fact that the respondent had raised an argument about judicial immunity during the period when his complaint was being dealt with by the Ontario Human Rights Commission. This issue was fully canvassed in my Decision at paragraphs 31 to 38. As indicated, there was no evidence before me that the Commission, as that term is defined in the Code, made any actual decision on judicial immunity. A letter from a Commission staff member is not a decision by the Commission. I see no basis in the submissions or materials filed by the applicant in support of his reconsideration request to alter my position in this regard.

12The applicant once again raises s. 2(4) of the Tenant Protection Act, 1997, S.O. 1997, c. 24 (now repealed) and s. 47 of the Code to repeat his argument that these statutory provisions displace the common law doctrine of judicial immunity. These are all arguments that already were made before me by the applicant, and are fully addressed in my Decision at paragraphs 57 to 67.

13The applicant in his reconsideration submissions makes reference to s. 205(2) of the Tenant Protection Act as it existed at the time, which stated:

Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsection (1) does not relieve the Crown of any liability to which it would otherwise be subject in respect of a tort committed by 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.

14It is unclear to me how this provision assists the applicant’s argument. It simply states that the Crown may be liable for a tort committed by various persons, including a member of the Tribunal, notwithstanding the protection afforded by s. 205(1). As discussed in my Decision, the issue is whether the statutory provisions in the Tenant Protection Act and the Code, as they existed at the relevant time, were sufficient to displace the common law principle of judicial immunity. For all the reasons set out in my Decision, I found that they were not. The language of s. 205(2) of the Tenant Protection Act does not change my conclusion in this regard. It merely states that the Crown may be liable for a tort committed by various persons, including a member of the Tribunal, but does not state that the Crown is liable for actions by a member of the Tribunal that would otherwise be protected by the principle of judicial immunity.

15The applicant takes issue with an earlier ruling of this Tribunal, 2009 HRTO 1404, refusing to add legal counsel as party respondents to this proceeding. This Interim Decision had nothing to do with the provisions of sections 205(1) or (2) of the Tenant Protection Act. Rather, the Tribunal stated (at para. 6), “legal counsels representing their clients do not become party to the alleged discrimination of the client by defending their interests”. I wholeheartedly agree with this statement, which is well-founded at law, and see no basis to reconsider the Tribunal’s refusal to add legal counsel as respondents.

16The applicant makes detailed submissions on the issue of whether the adjudication by Ms. Beckett is a “service” within the meaning of the Code. While this was one of the arguments raised by the respondents before me, I did not find it necessary to address this issue in my Decision as I determined that Ms. Beckett’s decisions were protected by judicial or quasi-judicial immunity. Accordingly, as this issue did not form a basis for my Decision to dismiss the Application, I need not address it on reconsideration.

17The applicant cites the decision of the Saskatchewan Court of Appeal in Saskatchewan (Workers' Compensation Board) v. Saskatchewan (Human Rights Commission), (1999) 1999 CanLII 12368 (SK CA), 180 Sask. R. 58, in support of his reconsideration request. This decision is distinguishable on a number of bases. First, the Court in that case was not asked to address and did not address the issue of judicial or quasi-judicial immunity. Second, what was at issue in that case was a letter decision issued by a first level claims officer at the Saskatchewan Workers’ Compensation Board, which in turn was based upon a policy promulgated by the Board. The claimant in the case alleged that she had experienced discrimination because of her sex, on the basis that the claims officer’s interpretation of the Board policy resulted in the suspension of her benefits while she was pregnant.

18In addressing the issue of whether the Saskatchewan Human Rights Commission and the Board of Inquiry it had requested be appointed had jurisdiction over this issue, the Court of Appeal stated (at para. 13):

Although the adjudicative function of the Board may be similar to a court’s function, the Board has a further function of providing “services” which distinguishes it from a court and places it within the scope of the Code’s application. The Act provides for a comprehensive administration of “benefits” by the Board which brings it within the purview of s. 12(1). While a court can set down binding interpretations of legislation, it has no power to create new legislation. Here, the Board is empowered to make regulations under its Act. Section 181(2) contemplates the making of policy directives which, in this case, is highly relevant. Simply because the Board engages in some functions that are “quasi-judicial” does not mean that its adjudicative role insulates it from complaint under the Code.

19In my view, it is the Court’s last statement that is telling, and which is consistent with the jurisprudence of this Tribunal, including my underlying Decision. As stated by the Court, “Simply because the Board engages in some functions that are ‘quasi-judicial’ does not mean that its adjudicative role insulates it from complaint under the Code”. In my view, the Court is not saying that human rights Board of Inquiry can review adjudicative decisions of a statutory tribunal that would otherwise be protected by the principle of judicial or quasi-judicial immunity. Rather, the Court is saying that the mere fact that the Workers’ Compensation Board engages in some functions that are quasi-judicial does not mean that this insulates the Board in its entirety from the purview of human rights legislation. This has been recognized by this Tribunal in a number of cases.

20The issue before me was not whether the Landlord Tenant Board (or the Ontario Residential Housing Tribunal, as it then was) in its entirety is immune from the application of the Code. It is clear that it isn’t. The question when dealing with the application of the principle of judicial or quasi-judicial immunity is whether the complaint is about the performance by a statutory decision-maker of an adjudicative function, as that role has been interpreted in the context of the principle of immunity. The application of the principle of judicial or quasi-judicial immunity does not serve to insulate from this Tribunal’s jurisdiction the conduct of staff members of the Landlord Tenant Board who are not exercising an adjudicative function or even members of the Board if the conduct at issue is unrelated to the exercise of an adjudicative function.

21Accordingly, in my view, my Decision in the instant case is not in conflict with the decision of the Saskatchewan Court of Appeal in Saskatchewan (Workers' Compensation Board) v. Saskatchewan (Human Rights Commission), supra.

22The applicant cites Welch v. New Brunswick, (1991) 1991 CanLII 5795 (NB QB), 116 N.B.R. 262 (Q.B.) for the proposition that the common law can be expressly displaced by a statute or regulation, and also cites Re WCAT-2010-01872 for the proposition that the common law can be displaced either expressly or by reasonable implication. I agree with these general legal propositions, which I applied in my underlying Decision. For all of the reasons discussed in my Decision, I found that the common law principle of judicial or quasi-judicial immunity had not been displaced by the provisions of the Code or the Residential Tenancies Act, whether expressly or by reasonable implication. I see nothing in the applicant’s submissions on reconsideration to alter my view in this regard.

23The applicant submits that I erred in failing to consider all relevant factors in making my Decision. I disagree. He also submits that the common law must be interpreted in light of the Canadian Charter of Rights and Freedoms, but does not cite any authority to support the proposition that the principle of judicial or quasi-judicial immunity is in conflict with the Charter.

24The applicant further submits that I failed in my application of the Supreme Court of Canada’s decision in Seneca College of Applied Arts and Technology v. Bhadauria 1981 CanLII 29 (SCC), [1981] 2 S.C.R. 181. This decision is addressed at paragraph 61 of my Decision, and I see no basis to alter my review and consideration of that decision.

25The applicant makes reference to the Magna Carta and the Bill of Rights, 1689, which he submits are incorporated into the Constitution Act, 1867. I fail to see how the provisions of these documents relied upon by the applicant serve to advance the applicant’s arguments.

26The applicant also makes reference to several cases in the Courts in which he has participated or sought to participate. Once again, I fail to see the relevance of this information to the matter at issue in this proceeding.

27In the end, the applicant has not satisfied me that my Decision is in conflict with established jurisprudence or Tribunal procedure, nor has he satisfied me that other factors exist that outweigh the public interest in the finality of Tribunal decisions.

28For all of these reasons, the applicant’s Request for Reconsideration is denied.