Rina Jade Vanhelvoort v. Ontario Labour Relations Board, 2011 HRTO 1185

Human Rights Tribunal of Ontario

B E T W E E N:

Rina Jade Vanhelvoort Applicant

-and-

Ontario Labour Relations Board Respondent

INTERIM DECISION

Adjudicator: Naomi Overend Date: June 20, 2011 Citation: 2011 HRTO 1185 Indexed as: Vanhelvoort v. Ontario Labour Relations Board

WRITTEN SUBMISSIONS BY

Rina Jade Vanhelvoort, Applicant (On her own behalf) Ontario Labour Relations Board, Respondent (Leonard Marvy, Counsel)

1The applicant filed an Application alleging discrimination in the provision of service and facilities on the basis of race, colour, ethnic origin, sex and family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the "Code"). This Application is primarily concerned with the adjudication of her case by the Ontario Labour Relations Board (OLRB), although it also deals with the lack of diaper changing facilities at the OLRB premises.

2In its Response, the OLRB asked that the Application be dismissed on the basis of judicial immunity and/or s. 45.1. The applicant was directed to provide submissions on these issues when the Response was served on her. Her submissions were delivered on May 18, 2011.

3On the same date, the applicant also delivered a Request for Order During Proceedings (Form 10) in which she made a request for production of her entire OLRB file and any documentation written by the adjudicator in her OLRB matter.

4This Interim Decision addresses the respondent's request to dismiss and the applicant's request for production.

JUDICIAL IMMUNITY

5The applicant alleges that the adjudicator and/or the OLRB acted unfairly towards her in the following manner: (1) by granting an adjournment which she had not given her written consent to; (2) by admitting hearsay evidence presented by the employer; (3) by disregarding important evidence and concessions made in cross-examination; (4) by changing the testimony of one of the applicant's witnesses; (5) by not paying attention to and interrupting the applicant's final argument; and (6) by accusing the applicant of "playing" with her child when she had left the room after being directed to get her first witness.

6The respondent submits that the doctrine of judicial immunity has been applied by this Tribunal to shield administrative tribunals (which would include the OLRB) and courts from Applications concerning the actions of judges and adjudicators while acting in their adjudicative capacity.

7The applicant submits that no person is above the law, including prime ministers. She does not address the cases cited by the OLRB in its submissions. This caselaw from the Tribunal states that judges and adjudicators are protected by the doctrine of judicial immunity from applications to this Tribunal.

8This line of authority states that judicial immunity exists to shield decision makers from complaints about their conduct that might otherwise "drastically reduce" their ability to "independently and impartially decide cases before them" (see Cartier v. Nairn, 2009 HRTO 2208). Indeed, judicial immunity applies even where a dissatisfied party alleges that the adjudicator did not follow the rules of natural justice, (see Lemieux v. Howe, 2010 HRTO 1596 at para. 10 and 11).

9Judges and adjudicators, when acting in their adjudicative capacity, are subject to review on appeal or judicial review, if they fail to afford the parties natural justice or make other reviewable errors. However, this Tribunal cannot stand in review of other adjudicative bodies. Accordingly, the Application as it relates to the actions of the OLRB's adjudicative actions (as set out in para. 4 above) falls outside the jurisdiction of the Tribunal and is dismissed.

10With respect to the remaining allegation, namely that the OLRB does not have adequate diaper changing facilities, it is not plain and obvious at this stage that it is outside the jurisdiction of the Tribunal. Accordingly, this portion of the Application shall continue in the Tribunal's process.

PRODUCTION REQUEST

11The applicant's Request for production of the OLRB file and adjudicator's notes is moot in view of the dismissal of this portion of her Application. In any event, such a request would otherwise be viewed as premature, given the requirements of Rule 16 of the Tribunal's Rules of Procedure, which provides for documentary disclosure following the issuance of the Notice of Hearing.

ORDER

12In sum, the Tribunal makes the following orders:

a. The allegation in the Application concerning the lack of adequate diaper changing facilities shall continue in the Tribunal's process; the remaining portion of the Application is dismissed; and

b. The applicant's Request for production of the OLRB file and adjudicator's notes is dismissed.

13I am not seized of this matter.