HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rina Jade Vanhelvoort Applicant
-and-
Ontario Labour Relations Board Respondent
RECONSIDERATION DECISION
Adjudicator: Naomi Overend Date: July 26, 2011 Citation: 2011 HRTO 1400 Indexed as: Vanhelvoort v. Ontario Labour Relations Board
1On June 20, 2010, the Tribunal issued an Interim Decision, 2011 HRTO 1185, in which it dismissed the allegations in the Application relating to the adjudication by the Ontario Labour Relations Board (“OLRB”) of a claim by the applicant, as the actions of the adjudicator are protected by the doctrine of judicial immunity.
2On July 14, 2011, the applicant filed a Request for Reconsideration of that Interim Decision. That same day, the applicant also brought a Request for Order During Proceedings (Form 10) requesting the Tribunal hold an oral hearing before making a determination on the issue of judicial immunity.
3A respondent is not required to respond to a Request for Reconsideration unless directed to do so by the Tribunal. In the circumstances of this Request, the Tribunal did not deem it necessary to seek submissions from the respondent. For the reasons set out below, the Request for an oral hearing and the Request for Reconsideration are denied.
BACKGROUND
4The applicant filed her Application alleging discrimination in the provision of services 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”). The allegations largely (although not exclusively) concern the adjudication of her claim under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”) by a Vice Chair of the OLRB.
5In its Response, the respondent raised the issue of judicial immunity and set out the law in its written submissions in that Response. The applicant was specifically directed to provide written submissions on the issue of judicial immunity and whether the Application should be dismissed, which she did.
6Following receipt of the written submissions from the applicant, the Tribunal dismissed the allegations in her Application relating to the adjudication of her ESA claim by the ORLB on the basis of judicial immunity. The applicant seeks reconsideration of the decision to dismiss this portion of her Application. She argues that the actions of the Vice Chair were not subject to judicial immunity for a number of reasons, which I discuss below.
REQUEST FOR ORAL HEARING
7The applicant asserts that under s. 43(2) she has the right to make oral submissions before the Tribunal can finally dispose of this issue. The basis for her argument is that the doctrine of judicial immunity (and its application to the facts of this case) is not absolute, and that she should, therefore, be allowed to provide oral submissions on why the exemptions apply in her case.
8Section 43(2) provides that the Tribunal must afford the parties the right to make oral submissions before finally disposing of a matter within its jurisdiction. However, the Tribunal has ruled that matters protected by the doctrine of judicial immunity are outside the Tribunal’s jurisdiction. It is not necessary, therefore, to hold an oral hearing with respect to this issue.
REQUEST FOR RECONSIDERATION
9Section 45.7 of the Code allows any party to a proceeding before the Tribunal to request that it reconsider its decision. The Rules of Procedure elaborate on the conditions and requirements of such a request. Pursuant to Rule 26.5, reconsideration will not be granted unless the Tribunal is satisfied that:
a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or
b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or
c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or
d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.
10It is also useful to consider the Tribunal’s Practice Direction on Reconsideration, which states in part:
Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.
11In her Request the applicant checked the boxes indicating that the reasons for her Request are that the Interim Decision is in conflict with established case law or Tribunal procedure and involves a matter of general or public importance, and that other factors exist that outweigh the public interest in the finality of Tribunal decisions.
12In her Request, the applicant submits that judicial immunity does not apply to her allegations because the Vice Chair at the OLRB failed to follow the rules of natural justice. However, in the Interim Decision, I state that the case law makes it clear that an allegation of a breach of natural justice is not sufficient to make an adjudicator personally liable for his/her actions when acting as an adjudicator.
13Such breaches, if proven, may result in a decision being overturned on appeal or judicial review, but are not liable to censure from this Tribunal. This Tribunal does not stand in review of other adjudicative bodies. This is particularly so where, as with this fact situation, most of the applicant’s allegations concern alleged breaches of natural justice with no apparent link to any prohibited ground of discrimination under the Code.
14Likewise, the applicant submits that the doctrine of judicial immunity violates the Charter of Rights and Freedoms, and is therefore invalid, when the allegations of impropriety constitute a violation of s. 15 of the Charter or the Code. She asserts that the appropriate forum for determining such matters would be the Tribunal.
15The applicant also suggests that the doctrine of judicial immunity does not apply when, as is the case with OLRB vice chairs, the adjudicator has neither security of tenure nor financial security.
16Both of the above arguments are argued from first principles and are not supported by any case law. The internal logic of the applicant’s arguments is neither entirely clear, nor compelling.
17The applicant also asserts that the adjudicator was not acting in an adjudicative capacity when she made an alleged comment to the applicant in the hallway (i.e., outside the hearing room). It is the applicant’s position that this particular conduct was not subject to judicial immunity. I disagree. Assuming the facts concerning this remark as alleged by the applicant are true, it would appear that the adjudicator was expressing her annoyance to the applicant that she had not returned to the hearing room with her witness as the adjudicator had directed her to do. This is not a personal comment made concerning a non-adjudicative matter, but a direction to a party in the context of an adjudicative matter.
18A Request for Reconsideration is not an opportunity to restate or re-argue a position already advanced and considered. The applicant took advantage of the opportunity to make written submissions on judicial immunity in response to arguments and case law presented by the respondent in its Response. Her Request for Reconsideration is simply a second attempt to re-argue her position on the issue of judicial immunity.
19The applicant has not shown the Interim Decision under reconsideration to be in conflict with established case law, nor has she demonstrated that other factors exist that outweigh the public interest in the finality of Tribunal decisions. While it is evident that the applicant disagrees with my determination that the actions of this OLRB adjudicator are protected by judicial immunity, she has presented no basis to reconsider my decision.
20The Request for Reconsideration is denied.
Dated at Toronto, this 26th day of July, 2011.
”signed by”__________
Naomi Overend
Vice-chair