Goguen v. Ontario Labour Relations Board, 2010 HRTO 969

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robin Goguen

Applicant

-and-

Ontario Labour Relations Board, Peter Chauvin and Tim Parker

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: May 3, 2010

Citation: 2010 HRTO 969

Indexed as: Goguen v. Ontario Labour Relations Board

Written Submissions by

Robin Goguen, Applicant ) On his own behalf

Ontario Labour Relations Board, ) Leonard Marvy, Counsel Peter Chauvin and Tim Parker, Respondents )

1This is an Application filed June 30, 2009, under section 53(5) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The complaint filed with the Ontario Human Rights Commission on November 1, 2005, was abandoned upon the filing of the present Application.

2The purpose of this Decision is to address the respondents’ Request for Order during Proceedings seeking dismissal on the basis that the alleged acts of discrimination do not fall within the jurisdiction of the Tribunal.

3This Decision is based on the written submissions of the parties.

Facts

4The applicant self-identifies as a person with Aboriginal status.

5On November 24, 2004, the applicant filed an unlawful reprisal application under section 50 of the Occupational Health and Safety Act, R.S.O. 1990, c.O.1, as amended, (the “section 50 application”). Based on the material submitted the respondent, Peter Chauvin (the “Vice-chair”), a Vice-chair of the respondent, Ontario Labour Relations Board (the “Board”), issued a decision dated December 16, 2004 dismissing the section 50 application on the basis that the employer fell within the federal jurisdiction and therefore the Board had no jurisdiction to hear the application.

6On January 7, 2005, the Vice-chair granted the applicant’s request for an extension of time to file a request for reconsideration.

7On January 24, 2005, the applicant filed an amended section 50 application which was identical to the original section 50 application except for alleging additional facts asserting that the applicant had done work for private provincial companies on behalf of the employer.

8On January 25, 2005, the applicant’s representative asked for an expedited hearing.

9On January 31, 2005, the applicant filed a Request for Reconsideration, in which the applicant’s Aboriginal status is mentioned.

10On February 14, 2005, the Vice-chair issued a decision addressing the request for reconsideration and the amended section 50 application. The Vice-chair sought further submissions from the employer regarding the applicant’s allegations of having worked for a private provincial company on its behalf. The employer did not file any submissions.

11On March 2, 2005, the applicant asked for an expedited hearing on the basis that the employer had not filed any submissions.

12On May 11, 2005, the applicant inquired why the application of an “Aboriginal applicant has been unjustly frozen.”

13On May 18, 2005, the Vice-chair issued a decision, dismissing the amended section 50 application as outside the jurisdiction of the Board. The Board had not received any submissions from the employer on this point.

14On November 1, 2005, the applicant filed a complaint with the Ontario Human Rights Commission with respect to the above events. He alleged that the Board unjustly dismissed his application because he is Aboriginal. He alleges that the respondent, Tim Parker, the Board’s Registrar (the “Registrar”) and/or the Vice-chair unjustly applied Board Rules against him because he is Aboriginal, by for example, not granting his request to expedite, not ensuring that a decision was issued promptly after the respondent employer failed to file submissions, and unjustly “freezing” his application.

Analysis and Decision

15The Tribunal has previously held that the content and reasons of an adjudicator’s decision is not a service within the meaning of the Code: Ballieram v. Workplace Safety and Insurance Board, 2010 HRTO 712 and all the cases cited therein. The Tribunal has also held that the adjudicative functions of a quasi-adjudicative tribunal are protected by adjudicative immunity: Hazel v Ainsworth Engineered, 2009 HRTO 2180; Cartier v. Nairn, 2009 HRTO 2008; Robinson v Ontario Municipal Board, 2010 HRTO 207. I agree with both of those approaches.

16In my view, the entire process of decision-making from the applicant’s first section 50 application to the final decision of May 18, 2005 dismissing the section 50 application falls with the adjudicative function. It is evident that the Vice-chair, after issuing the first decision dated December 16, 2004, remained in control of the adjudicative process, including the process of reconsideration and resolution of the amended section 50 application. He was responsible for the decision not to expedite the section 50 application, to seek further submissions from the employer, and to proceed with the final reconsideration decision without awaiting further submissions from the employer.

17I conclude I have no jurisdiction to inquire into whether that adjudicative process amounts to a breach of Code on the basis of the applicant’s Aboriginal status, as that adjudicative process does not fall within the meaning of a service under the Code and/or is protected by adjudicative immunity.

18With respect to the bald allegation that the Registrar played some role in the timing or conduct of the Tribunal’s adjudicative decision-making, and that the Tribunal must inquire into that possibility, I find that the applicant has not set forth any factual basis for that allegation. I find, as stated above, that once the section 50 application was placed before the Vice-chair, it fell within the adjudicative process and there is no basis to inquire into the bald allegation that the Registrar took any actions to interfere with that decision-making process because of the applicant’s Aboriginal status.

19The Application is dismissed.