Ahmed Chafchak v. Justice Gerald Taylor - Ontario Superior Court of Justice, 2011 HRTO 1425

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ahmed Chafchak Applicant

-and-

Justice Gerald Taylor - Ontario Superior Court of Justice Respondent

DECISION

Adjudicator: Ena Chadha Date: July 28, 2011 Citation: 2011 HRTO 1425 Indexed as: Chafchak v. Justice Gerard Tayloro-Ontario Superior Court of Justice.

1This Application was filed on March 29, 2011 under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“Code”), alleging discrimination in the areas of services, goods and facilities.

2The Application alleges that the applicant was denied justice in court and deprived of civil rights. The Application notes that the date of the last event was September 5, 2006.

3On June 13, 2011, the Tribunal issued a Notice of Intent to Dismiss on the grounds that the Application was filed more than one year after the last incident of alleged discrimination and because the Tribunal has no jurisdiction over the Application because of judicial immunity.

4The applicant filed submissions on July 13, 2011 objecting to the dismissal. The applicant’s submissions indicate that the Application was filed late because the applicant was unaware of the existence of the Tribunal. The applicant also argues that the alleged errors in the respondent judge’s decision dismissing his civil case are evidence of the alleged discrimination.

DECISION

5The Tribunal has clarified in numerous recent decisions that it 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.

6The Tribunal explained this concept as follows in Cartier v. Nairn, 2009 HRTO 2208 at paras. 12-15:

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 CanLII 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, 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.

7The Application seeks to challenge the respondent judge’s adjudicative decision which, based on the above-noted principles, is protected by judicial immunity. As such, it is plain and obvious that the alleged conduct and decision of the respondent judge falls within the concept of judicial immunity and, therefore, not subject to review by the Tribunal.

8In addition, the Application was filed well beyond the one year timeline after the alleged discriminatory events. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for any delay. See, for example, Klein v. Toronto Zionist Council, 2009 HRTO 241. As stated in Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241, in order for an applicant to establish that a delay in filing an application was incurred in good faith, the applicant must show something more than simply an absence of bad faith; otherwise, there would be little meaning to the statutory limitation period.

9In conclusion, the Tribunal does not have jurisdiction to hear the Application as the respondent is a judge and subjected to the doctrine of judicial immunity. I also am not persuaded that the delay in bringing this Application was incurred in good faith. Accordingly, the Application is dismissed.