Lemieux v. Rowan, 2010 HRTO 2534

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lydia Lemieux Applicant

-and-

Caroline Rowan Respondent

DECISION

Adjudicator: Jay Sengupta Date: December 23, 2010 Citation: 2010 HRTO 2534 Indexed as: Lemieux v. Rowan

1This is an Application filed on April 29, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges discrimination in employment on the basis of race, colour and disability. She names a Vice-chair of the Ontario Labour Relations Board as the respondent.

2On September 14, 2010, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) as it appeared that the Application may be outside the Tribunal’s jurisdiction. The applicant was directed to provide written submissions on the issues raised in the NOID no later than October 14, 2010.

3The Tribunal has received submissions from the applicant in which she reiterates her position that the respondent discriminated against her on the ground of disability with respect to employment. The documents indicate that the respondent was the adjudicator in an OLRB consultation held with respect to a duty of fair representation application brought by the applicant against her union, the Ontario Nurses Association.

4She takes issue with the decision of the adjudicator in that proceeding to continue hearing the application despite a request by the applicant to “put the proceedings on hold” and alleges that the respondent failed to accommodate her disability contrary to the Code.

5The applicant submits that the doctrine of judicial immunity does not deprive the Tribunal of jurisdiction over the allegations against the respondent in the case at hand because the arbitrator did not follow the rules of natural justice in adjudicating the applicant’s OLRB matter.

6For the reasons that follow, the Application is dismissed.

7The Tribunal has considered and applied the doctrine of judicial immunity as a valid restriction on the Tribunal’s authority to inquire into the content of an adjudicative decision in the course of dealing with an Application: Cartier v. Nairn, 2009 HRTO 2208. A review of the principles upon which courts have extended judicial immunity is set out in Hazel v. Ainsworth Engineered, 2009 HRTO 2180 (“Hazel”).

8As noted in Cartier and Hazel, judicial immunity has been extended to various non-judge decision-makers in respect of their decisions, but it is important to note that the extension has been from the role of judges in court proceedings and is focused on the nature of the service; the function that is performed, which is to be the neutral arbiter of a dispute between two or more persons. Clearly, the reason for judicial immunity is the maintenance of independence in the context of deciding disputes between two or more persons.

9In the circumstances of this Application, it appears that all of the allegations made by the applicant concern rulings made by the respondent in the exercise of her function as an independent, neutral arbiter of disputes as a member and Vice-chair of the OLRB.

10As all decisions affecting the applicant were adjudicative in nature and made by the respondent in her capacity as a Vice-chair of the OLRB exercising its statutory duties, they fall outside the jurisdiction of the Tribunal and, accordingly, the Application is dismissed.