William Thomson v. Ontario Secondary School Teachers’ Federation and Ontario Labour Relations Board, 2011 HRTO 116

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

William Thomson

Applicant

-and-

Ontario Secondary School Teachers’ Federation and Ontario Labour Relations Board

Respondents

DECISION

Adjudicator: Ena Chadha Date: January 17, 2011 Citation: 2011 HRTO 116 Indexed as: Thomson v. Ontario Secondary School Teachers’ Federation

WRITTEN SUBMISSIONS BY

William Thomson, Applicant ) Self-represented Ontario Secondary School Teachers’ Federation, Respondent ) Simon Blackstone, Counsel Ontario Labour Relations Board, Respondent ) Leonard Marvy, Counsel

1This Application was filed on June 23, 2008, under section 34 of Part IV of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondents are the Ontario Secondary School Teachers’ Federation (“OSSTF”) and the Ontario Labour Relations Board (“OLRB”).

BACKGROUND

Application Against OSSTF

2The applicant alleges that he experienced discrimination on the basis of disability by the OSSTF in the area of membership in a vocational association contrary to section 6 of the Code. The applicant’s employment was terminated in 2003 and his union, OSSTF, launched a grievance on his behalf claiming wrongful dismissal. The applicant alleges that, from 2003 to 2006, OSSTF mishandled his grievance arbitration and failed to accommodate his disability-related needs.

3Specifically, the applicant alleges that, in March 2006, OSSTF cancelled his nine-day arbitration hearing because he was unable to commit to attending the hearing as a result of his poor health. The applicant alleges that, in failing to understand that his non-attendance was because of his disability, OSSTF discriminated against him by cancelling his hearing. The applicant asserts that he again experienced discrimination in April 2008 when OSSTF stated in correspondence to him that due process was followed in discontinuing the arbitration hearing.

Application Against OLRB

4The applicant alleges that he experienced discrimination on the basis of disability by the OLRB in the area of services contrary to section 1 of the Code. The applicant filed an unfair representation complaint against OSSTF with the OLRB in 2004 and again in 2005. In a decision dated May 1, 2006, the OLRB directed the applicant to contact the OLRB’s Labour Relations Specialist regarding certain matters. The applicant failed to contact the Labour Relations Specialist in accordance with the OLRB’s directions and, as a result, the OLRB decided not to proceed with the applicant’s case.

5The applicant alleges that the OLRB failed to accommodate his disability-related needs when it decided, in June 2006, to dismiss his complaint because he did not comply with the OLRB’s directions. The applicant alleges that the OLRB failed to consider that his non-compliance was related his health.

Respondents’ Requests to Dismiss

6The respondents requested early dismissal on the following bases:

(i) Both respondents allege the Application should be dismissed, in whole or in part, because the substance of the Application was appropriately dealt with by other proceedings, namely the grievance arbitration process and duty of fair representation complaints;

(ii) Both respondents allege the Application should be dismissed because of delay;

(iii) The OSSTF further alleges that the substance of the Application was appropriately dealt with by the Ontario Human Rights Commission (“Commission”); and

(iv) The OLRB also alleges that the Tribunal does not have jurisdiction over the OLRB’s adjudicative decisions.

7In an earlier Interim Decision, 2009 HRTO 1568, the Tribunal established a schedule for the parties to file written submissions regarding the above-noted issues and directed the parties to provide submissions regarding the issue of whether or not the Application is barred by virtue of section 53(8) of the Code. The Tribunal also drew the parties’ attention to the Tribunal’s jurisprudence with respect to the doctrine of judicial immunity.

8Extensive submissions were filed by all the parties.

DECISION

9Based on a careful review of all the materials, I conclude that the Application as it relates to the OLRB is outside of the Tribunal’s jurisdiction because of the doctrine of judicial immunity. I also find that the Application as it relates to both OSSTF and the OLRB is beyond the one-year limitation period set by section 34(1) of the Code.

OLRB’s Judicial Immunity

10The applicant alleges that he experienced discrimination when OLRB Vice-Chair Timothy W. Sargeant rendered a Decision on June 15, 2006, terminating his duty of fair representation proceedings because it “served no useful labour relations purpose to inquire further into [the applicant’s] matter”. The applicant alleges that this OLRB Decision discriminated against him as a person with a disability because it failed to consider his disability-related needs.

11The Tribunal has clarified in numerous recent decisions that this Tribunal does not have 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, 2009 HRTO 2208 (“Cartier”); Hazel v. Ainsworth Engineered, 2009 HRTO 2180; Higginson v. Workplace Safety and Insurance Appeals Tribunal, 2010 HRTO 111 and McWilliams v. Criminal injuries Compensation Board, 2010 HRTO 937.

12In Cartier, supra, the Tribunal provided a detailed explanation of the principle of judicial immunity and its application to adjudicative 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.

13There is no doubt that the applicant’s allegations against the OLRB pertain to the OLRB’s adjudicative decision-making and, more specifically, the directions given and decision made by Vice-Chair Timothy W. Sargeant in considering the applicant’s unfair representation complaint. I adopt the legal principles articulated in Cartier, supra, and, on this basis, determine that the Tribunal does not have jurisdiction over the Application as against the OLRB. The Application seeks to challenge the OLRB’s adjudicative decision which, based on the above-noted principles, is protected by judicial immunity and, therefore, not subject to review by the Tribunal.

Delay

14Section 34(1) of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) of alleged discrimination. Section 34(2) provides that persons may apply to the Tribunal more than one year after the incident(s) in certain circumstances. Section 34 states:

34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

15As stated in Mafinezam v. University of Toronto, 2010 HRTO 1495 (“Mafinezam”), the threshold question in applying section 34 is what constitutes the “incident” to which the Application relates.

16With respect to the Application against the OSSTF, the applicant contends the incident to which his Application relates was in April 2008. I disagree and find that the incident to which the OSSTF Application relates actually took place in 2006 with the discontinuation of the applicant’s arbitration hearing.

17The chronology of events indicates that in March 2006 the OSSTF cancelled the dates scheduled for the applicant’s arbitration hearing. It appears that the OSSTF had no further involvement with the applicant except to defend against the applicant’s various unfair representation complaints. Later, in April 2008, the applicant sent an OSSTF representative an email expressing his concerns regarding OSSTF’s handling of his case. The OSSTF representative replied by way of letter dated April 28, 2008, where the OSSTF maintained that “due process” was followed and if the applicant was not satisfied with the “past decisions” the applicant could seek to pursue his concerns elsewhere. The applicant contends this April 2008 correspondence from the OSSTF representative constitutes “a continuation and updating of the behaviour of the spring of 2006” when his arbitration hearing was cancelled.

18I do not accept the applicant’s argument that the OSSTF discriminated against him in 2008 simply because it maintained its position that it provided appropriate representation to the applicant. The correspondence exchanged by the applicant and the OSSTF in 2008 was directly in reference to the OSSTF’s 2005-2006 carriage of the applicant’s grievance and 2006 cancellation of the arbitration hearing. It is the OSSTF’s handling of his grievance and cancellation of the arbitration hearing which are at the heart of the applicant’s Application and which the applicant perceives to be discriminatory. This is acknowledged in the applicant’s narrative which indicates that he corresponded with the OSSTF in April 2008 to reiterate his concerns about OSSTF counsel and how his arbitration was handled. Further, there was nothing new in the April 2008 correspondence that could give rise to fresh allegations of discrimination. Accordingly, the Application, as it relates to the OSSTF, was filed over one year after the last incident and does not meet the requirements of section 34(1).

19I reject the applicant’s contention that the alleged discrimination he experienced with respect to the cancellation of his arbitration hearing in 2006 continued until, or reoccurred in, 2008 simply because he re-communicated his concerns at that time. To allow an applicant to resurrect an out of time claim by simply restating old concerns would undermine the purpose of section 34 of the Code: Seetharam v. Iogen, 2010 HRTO 1811. Moreover, any alleged continuing effect flowing from the OSSTF’s 2006 hearing discontinuance does not extend the Code’s section 34(1) timeline: Mafinezam, supra.

20The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. The mandatory one-year limitation period is consistent with the Code’s objective that human rights claims should be dealt with fairly and expeditiously. Thus, the Code requires an individual to act with all due diligence, and file their application within one year, when they seek to pursue a human rights claim.

21The applicant’s narrative indicates that, despite his disability-related limitations, the applicant was able to undertake inquiries and engage various other legal processes before the Ontario College of Teachers, OLRB, Ombudsman, Ontario Human Rights Commission, etc., to pursue his concerns. The fact that a person is pursuing other avenues is not generally accepted as a valid or good faith reason for delay in filing an application. See Cartier v. Northeast Mental Health Centre, 2009 HRTO 1670, and Mafinezam, supra. Based on the information before the Tribunal, the applicant has not demonstrated why he could not meet the required deadline and that the delay in filing this Application was incurred in good faith as required under s. 34(2) of the Code.

22It is also noteworthy that the last incident of alleged discrimination cited in the Application with respect to the OLRB was June 15, 2006, the date of Vice-Chair Sargeant’s Decision dismissing the applicant’s unfair representation complaint. Accordingly, the Application, as it relates to the OLRB, was filed over two years after the last incident and, therefore, also does not meet the requirements of section 34(1).

23In sum, I am not persuaded that the delay in bringing this Application was incurred in good faith. It is not necessary for me to consider whether substantial prejudice would result from the delay. I find that the Tribunal does not have jurisdiction to process the Application because it was filed more than one year after the last incident of discrimination described in the Application and the delay was not incurred in good faith.

24Accordingly, this Application is dismissed. Given my decision with respect to judicial immunity and delay, it is not necessary to consider the other preliminary issues as listed earlier in this Decision.