McWilliams v. Criminal Injuries Compensation Board, 2010 HRTO 937

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Judith McWilliams

Applicant

-and-

Criminal Injuries Compensation Board, Virginia Morra and Maria Tassou

Respondents

DECISION

Adjudicator: Eric Whist

Date: April 29, 2010

Citation: 2010 HRTO 937

Indexed as: McWilliams v. Criminal injuries Compensation Board

1This is an Application filed on November 17, 2009, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in goods, services and facilities on the grounds of disability. This Decision is in relation to a Request for an Order during Proceedings (the “Request”) made by the respondents to remove the two personal respondents and to dismiss the Application.

BACKGROUND

2The applicant applied to the Criminal Injuries Compensation Board (“CICB”) for compensation for an injury arising from a crime of violence. In a decision dated July 13, 2009, the CICB rejected the applicant’s claim on the basis that it could not conclude that a crime of violence had taken place, given the lack of supportive evidence and the inconsistencies in the applicant’s evidence. This decision was made by a two-person panel, Virginia Morra, the panel chair, and Maria Tassou, member. Ms. Morra and Ms. Tassou have been named as personal respondents.

3The Application alleges that the personal respondents made an unfounded and discriminatory statement in the CICB decision about the applicant’s mental illness by indicating that they did not find her credible in measure because of this illness. The applicant relies on a particular statement in the decision which she quotes in the Application as saying “The Applicant’s mental health (Disassociative Identity Disorder) through no fault of her own, is also of concern” … “makes it impossible to know how she would isolate this incident from any other incidents.”

4The CICB is an independent quasi-judicial adjudicative tribunal of the Ministry of the Attorney General. The CICB adjudicates applications for compensation for injuries or death caused by crimes of violence that occurred in Ontario. Compensation awarded by the CICB is limited by statute and all applicants retain their right to seek recourse through the civil courts.

5In adjudicating a claim the CICB determines whether a crime of violence contrary to the Criminal Code and as defined by the Compensation for Victims of Crime Act, R.S.O. 1990, c. C.24, as amended (“CVCA”), has occurred, whether a claimant suffered an injury as a result of that crime of violence and what financial compensation, if any, should be awarded for that injury. Appeals and reviews of CICB decisions are only to the Divisional Court as outlined in the CVCA.

6The respondents’ Request is for the Application to be dismissed against the two personal respondents on the grounds that the allegations contained in the Application do not suggest that the personal respondents did anything outside their roles as adjudicators or that they had any contact with the applicant outside of the hearing. It is submitted that the personal respondents, as adjudicators of a Tribunal, are protected by the same immunity as judges as found in various Tribunal and Court decisions. The respondents rely on Robinson v. Ontario Municipal Board, 2010 HRTO 207, Cartier v. Nairn, 2009 HRTO 2208 and Higginson v. Workplace Safety and Insurance Appeals Tribunal, 2010 HRTO 111.

7The respondents submit that the Application should be dismissed on the basis that if the applicant had an issue with the decision her proper recourse was to the Divisional Court as outlined in the CVCA. The respondents argue that the Tribunal cannot usurp the Divisional Court’s role.

8The respondents further submit that the Tribunal has previously found that the content, reasons, and results contained in a decision of a statutory tribunal are not a “service” under the Code. See Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99 and Christianson v. Social Benefits Tribunal, 2009 HRTO 886. Consequently, the respondents argue, the Tribunal has no jurisdiction to consider the Application now before it and must dismiss it.

9The applicant submits in her Reply to the Request that she is opposing the removal of the personal respondents given that they are the signatories to the document containing the alleged discriminatory comments. The applicant repeatedly submits that her Application is not about the decision made by the CICB to dismiss her claim, stating that if she was appealing the CICB’s decision, she would have proceeded to the Divisional Court. Rather, the applicant submits that the Tribunal has the jurisdiction to determine whether the CICB and its adjudicators discriminated against her when they concluded that she was not a credible witness because of her mental disability. The applicant expresses her concern that as a result of the personal respondents’ assessment she will be vulnerable to future exploitation or abuse.

ANALYSIS

10The Tribunal has held on a number of occasions that it has no jurisdiction to hear applications against courts and tribunals based on the execution of their duties as adjudicators because of the doctrine of judicial immunity: see Cartier v. Nairn, supra; Hazel v. Ainsworth Engineered, 2009 HRTO 2180 and Higginson v. Workplace Safety and Insurance Appeals Tribunal, supra. In Cartier, the Tribunal provides a helpful overview of the principle of judicial immunity and its application to tribunal decisions:

The doctrine of judicial immunity prohibits legal proceedings against judicial actors which are based on their actions as adjudicators or decision-makers. The doctrine is rooted in the principle of judicial independence, the purpose of which is to ensure that judicial actors are free to execute their decision-making duties with independence and without fear of consequences.

The principle of judicial immunity has been applied to protect judicial actors from human rights complaints. In Taylor v. Canada (Attorney General) 2000 Can LII 17120 (F.C.A.) (2000), 184 D.L.R. (4th) 706 (leave ref’d [2000] No. 213), the Federal Court of Appeal held that the Canadian Human Rights Commission and Tribunal lacked jurisdiction over a complaint that a judge of the Ontario Court General Division had discriminated against a courtroom observer who was excluded from the courtroom on the basis of his religious head covering. In Taylor, Sexton J.A. for the Federal Court of Appeal explained why judicial immunity was so important to judicial independence:

…[T]he most serious consequence of permitting judges to be sued for their decisions is that judicial independence would be severely compromised. If judges recognized that they could be brought to account for their decisions, their decisions might not be based on a dispassionate appreciation of the facts and law related to the dispute. Rather, they might be tempered by thoughts of which party would be more likely to bring an action if they were disappointed by the result, or by thoughts of whether a ground-breaking but just approach to a difficult legal problem might be later impugned in an action for damages against that judge, all of which would be raised by the mere threat of litigation. In Lord Denning's words, a judge would "turn the pages of his books with trembling fingers, asking himself: “If I do this, shall I be liable in damages?”

Recently, the Supreme Court of British Columbia revisited the question of whether judicial immunity protects judicial actors from complaints that they have violated human rights legislation. In Gonzalez v. Ministry of Attorney General, 2009 BCSC 639, the Court upheld a decision of the British Columbia Human Rights Tribunal in which it found that it lacked jurisdiction to deal with part of a complaint alleging discrimination by a provincial court judge on the basis of disability in respect of employment and services. In that case, the judge had been accused of discriminating against legal counsel in a hearing under the Child Family and Community Service Act, R.S.B.C. 1996, c. 46, when he made comments about how accommodation of her physical disability was prolonging the proceedings. The basis for the Tribunal’s decision that it did not have jurisdiction in that matter was that the judge was protected from human rights complaints by judicial immunity.

The British Columbia Court reached its conclusion that the doctrine of judicial immunity protects judicial actors from complaints under human rights legislation cognizant of the public importance and quasi-constitutional status of human rights legislation:

Whether he was wrong or right, committed a human rights violation or simply acted inappropriately, the presiding judge said these things in the course of carrying out his legal duties.

There is no question that human rights legislation is quasi-constitutional and should be given a broad and liberal application. However, judicial immunity is also a constitutional principle and, as the Supreme Court of Canada held in Morier, the immunity of judges must be preserved even when it is alleged they have violated human rights. Judicial immunity is a necessary adjunct to the independence of the judiciary. Any erosion of this principle causes more detriment to the public’s confidence in the judiciary than would result from insulating any particular judge from civil liability for wrongful acts in the course of his duties. As Lord Bridge of Harwich said in McC v. Mullan, [1984] 3 ALL E.R. 908 at p. 916:

The principle underlying this rule is clear. If one judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety-nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction.

Moreover, the concept of judicial immunity has been held to protect not only judges from legal proceedings based on the execution of their duties as judicial actors, but also tribunals and other statutory-decision makers. In Agnew v. Ontario Association of Architects, (1987), 1987 CanLII 4030 (ON HCJ), 64 O.R. (2d) 8 (Div. Ct.) at p. 14, Campbell J. of the Ontario Divisional Court held that judicial immunity applies not only to judges, but also to members of administrative tribunals. In that case, there had been an attempt to subpoena members of a committee of the Ontario Association of Architects about a determination they had made pursuant to decision-making authority accorded them under the Architects Act, 1984, S.O. 1984, c. 12:

The authorities do not make it clear whether this general rule applies equally to members of administrative tribunals. In logic, there is no reason why it should not. The mischief of penetrating the decision process of a tribunal member is exactly the same as the mischief of penetrating the decision process of a judge

In Agnew, supra, Justice Campbell goes on to describe how judicial immunity ensures that adjudicative decisions are reviewed through the proper channels of review and appeal, instead of by process of cross-examination (at para. 28):

Apart from the practical consideration that tribunal members and judges would spend more time testifying about their decisions than making them, their compellability would be inconsistent with any system of finality of decisions. No decision and a fortiori no record, would be really final until the judge or tribunal member had been cross-examined about his decision. Instead of review by appeal or extraordinary remedy, a system would grow up of review by cross-examination. In the case of a specialized tribunal representing different interests the mischief would be even greater because the process of discussion and compromise among different points of view would not work if stripped of its confidentiality.

11I adopt and follow the above statements of the law and on this basis conclude that the statement made by the personal respondents in their decision is not one that can be reviewed by the Tribunal as it is protected by judicial immunity. As a consequence the Application is dismissed.

12The respondents also submitted that “services” within the meaning of the Code do not include the outcome or decision resulting from adjudications by other statutory bodies. As noted, they rely on the Tribunal decisions in Baird and Christianson. However, the Tribunal’s caselaw in this area is evolving and whether the CICB’s decision might constitute a service is not clear. (See Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595, and Dopelhamer v. Workplace Safety and Insurance Board, 2010 HRTO 765). However, there is no need to ask the parties for submissions on the significance of Dopelhamer which has been released since the Request and Reply to the Request were filed. The respondents’ decision is clearly protected from consideration by the Tribunal on the basis of judicial immunity and accordingly the Application is dismissed.