minicounsel

Lemieux v. Howe, 2010 HRTO 834

April 16, 2010

Lemieux v. Howe, 2010 HRTO 834

Case Summary

The applicant filed a human rights application alleging discrimination by a labour arbitrator in the handling and settlement of her grievance. The respondent arbitrator argued the application was outside the Tribunal's jurisdiction due to judicial immunity. The Tribunal issued an interim decision directing the applicant to provide written submissions on whether the doctrine of judicial immunity protects the respondent from the application.

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lydia Lemieux

Applicant

-and-

Robert Howe

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: April 16, 2010

Citation: 2010 HRTO 834

Indexed as: Lemieux v. Howe

[1] The applicant filed an Application under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination on the basis of disability in respect of employment, contrary to the Code.

[2] The respondent is a labour arbitrator who was appointed to hear and determine a grievance against the termination of the applicant’s employment pursuant to the terms of a collective agreement between the applicant’s trade union and the applicant’s former employer and the terms of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, as amended,

[3] The applicant alleges that the respondent treated her in a discriminatory manner in carrying out various functions as the labour arbitrator appointed to hear and determine the applicant’s grievance. Specifically, the applicant complains of decisions made by the arbitrator regarding the pre-hearing disclosure of certain documents; the adjournment of the arbitration hearing; and whether he ought to consider a document sent to him directly by the grievor’s mother. The applicant also complains that the arbitrator “allowed” the parties to the collective agreement to enter into a settlement of the applicant’s grievance.

[4] Among other things, the respondent submits that the Application is outside the jurisdiction of the Tribunal because the respondent is protected by the doctrine of judicial immunity from the Application. He further contends that he had no ability to prevent the applicant’s trade union and her former employer from settling the applicant’s grievance. The respondent also submits that the Application is an abuse of the Tribunal’s process; or in the alternative, that the subject-matter of the Application was appropriately dealt with in another proceeding within the meaning of s. 45.1 of the Code.

[5] In Cartier v. Nairn, 2009 HRTO 2208, the Tribunal held that arbitrators appointed pursuant to the terms of the Labour Relations Act, 1995, S.O. 1995, c.1, Sched. A. as amended, are protected by judicial immunity from Applications under the Code which are based on the exercise of their duties as adjudicators. The primary reason for extending judicial immunity to labour arbitrators is to protect their ability to independently determine grievances, without fear that unhappy parties will initiate legal proceedings against them based on the fulfillment of their role in the justice system.

[6] Within 14 days of the date of this decision, the applicant is directed to provide her written submissions on whether the respondent is protected from this Application because of the doctrine of judicial immunity and whether the Tribunal therefore lacks jurisdiction over this Application. The respondent is not required to file a response to the applicant’s submissions unless and until directed to do so by the Tribunal.

[7] The Tribunal’s decisions may be searched online, for free, at www.canlii.org.

Dated at Toronto this 16th day of April, 2010.

“Signed By”

Sheri D. Price

Vice-chair