Stefan Martek v. Her Majesty the Queen in Right of Ontario as represented by the Attorney General, 2011 HRTO 1077

Stefan Martek Applicant

and-

Her Majesty the Queen in Right of Ontario as represented by the Attorney General Respondent

decision

Adjudicator: Douglas Sanderson Date: June 13, 2011 Citation: 2011 HRTO 1077 Indexed as: Martek v. Ontario (Attorney General)

wRITTEN SUBMISSIONS

Stephen Martek, Applicant ) Self-represented

1This is an Application filed April 13, 2011 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the "Code").

2On April 16, 2011, the Tribunal issued a Notice of Intend to Dismiss ("NOID") to the applicant because the Application appeared to be outside the Tribunal's jurisdiction, since the respondent is an arbitrator, adjudicator or judge. In the NOID, the Tribunal directed the applicant to provide written submissions by May 26, 2011 and the applicant complied with this direction.

Background

3In his Application, the applicant asserts discrimination because of sex and marital status regarding the outcome of the mediation – arbitration proceedings between the applicant and his former wife that dealt with the partition and sale of their matrimonial home. In a decision dated July 10, 2008, Arbitrator Terrence Caskie ordered partition and sale of the matrimonial home with proceeds of the sale to be divided equally between the husband and the wife. The applicant considers this disposition to be unfair because his wife left the home with their children in 1986 and made no further contribution to the mortgage and other maintenance costs regarding the home. The applicant alleges Arbitrator Caskie discriminated against him because the arbitrator admitted and relied upon the wife's evidence regarding the reasons for the breakdown of the marriage, but refused to admit the applicant's evidence on that issue. Suffice is to say that the applicant and his former wife blame each other for the marriage breakdown and each accused the other of very serious misconduct. The applicant asserts that refusing to consider his evidence regarding the marriage breakdown demonstrated discrimination because of sex by the arbitrator. I note that despite having named the Ministry of the Attorney General as the respondent in this matter, the applicant's allegations are clearly confined to the outcome of the mediation-arbitration proceedings conducted by Arbitrator Caskie.

Judicial Immunity

4The 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. In Taylor v. Canada (Attorney General) 2000 17120 (F.C.A.), (2000), 2000 CanLII 17120 (FCA), 184 D.L.R. (4th) 706 (leave ref'd [2000] No. 213), Sexton J.A. for the Federal Court of Appeal described the connection between judicial immunity and 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?'"

The principle of judicial immunity applies not only to judges, but also to administrative Tribunals. See Agnew v. Ontario Association of Architects, (1987), 1987 CanLII 4030 (ON HCJ), 64 O.R. (2d) 8 (Div. Ct.). Judicial immunity has been extended to labour arbitrators appointed pursuant to the Labour Relations Act, 1995 and its predecessors, Cartier v. Nairn, 2009 HRTO 2208, members of the Immigration and Refugee Board, Ermina v. Canada (Minister of Citizenship and Immigration), (1998), 1998 CanLII 8969 (FC), 167 D.L.R. (4th) 764 (F.C.); the Law Society of Upper Canada in respect of its decision-making disciplinary processes and investigative functions, Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; and members of provincial commissions of public inquiry, Morier v. Rivard, 1985 CanLII 26 (SCC), [1985] 2 S.C.R. 716.

5In this case, Arbitrator Caskie conducted a family arbitration pursuant to the Arbitration Act S.O. 1991 c.17, as amended, (the "Act"). In a family arbitration under the Act, an arbitrator may deal with weighty matters such as those that could be dealt with in a marriage contract, separation agreement, cohabitation agreement or paternity agreement under Part IV of the Family Law Act, SA 2003, c F-4.5. In my view, the ability of arbitrators to decide family arbitrations in an impartial and independent manner would be seriously compromised if they were exposed to applications under the Code. Consequently, I find that arbitrators appointed pursuant to the Act are protected by judicial immunity.

6The Application is dismissed.

Dated at Toronto, this 13th day of June, 2011.

"signed by"________________

Douglas Sanderson Vice-chair