HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kimberley Ferjo
Applicant
-and-
Human Rights Tribunal of Ontario
Respondent
DECISION
Adjudicator: Lorne Slotnick
Indexed as: Ferjo v. Human Rights Tribunal of Ontario
1This is an application filed on July 30, 2010, under Section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in which the Tribunal is itself the respondent. The applicant alleges discrimination on the basis of sex in the area of contracts.
2The applicant’s allegations in this case arise from a previous proceeding before this Tribunal, the applicant’s role in that proceeding as representative and witness for the respondent, and an order that was issued in the course of that other proceeding.
3The applicant in this case appeared in an earlier case as the representative of the respondent, VideoComm Technologies Inc., and gave evidence on behalf of that respondent in a hearing conducted by Tribunal Vice-chair Leslie Reaume. Ms. Reaume’s decision dated April 8, 2010 (Osvald v. VideoComm Technologies, 2010 HRTO 770) found that VideoComm had violated the Code by discriminating against a pregnant employee on the basis of sex, and ordered payment of damages and lost wages to the Applicant in that case, as well as other remedies.
4An application for reconsideration by VideoComm was dismissed by decision dated June 22, 2010 (Osvald v. VideoComm Technologies, 2010 HRTO 1399).
5The April 8, 2010 decision makes no mention of any issues relating to legal representation. However, the reconsideration decision states as follows, at paras. 8 and 9:
VideoComm argues that it was denied the right to legal counsel. This issue was raised the first day of hearing, I heard submissions and carefully considered them and ruled that the request for an adjournment was denied. There are no new facts or arguments made in the Request for Reconsideration.
At its core, the Request for Reconsideration is an attempt by VideoComm to re-argue the case and appeal the Tribunal’s Decision. VideoComm has not met the burden of establishing any of the factors set out in Rule 102. The Request for Reconsideration is denied.
The Allegations
6The Application makes the following statements:
According to the Statutory Powers Procedure Act – 10, I had the right to Legal Representation in the HRTO file I was involved in HR-1536-08. Ms. Reaume clearly acknowledges in her Reconsideration decision that she chose to deny me my rights to Legal Representation at the original hearing which took place January 6 to the 8, 2009.
7Asked on the application form how the events affected her, the applicant stated:
I felt completely overwhelmed at the hearing. I expressed my concerns to the Vice-chair throughout the trial. During and since the trial I have been forced to seek medical help for my blood pressure which skyrocketed during the trial and has not been under control completely since. Various medications I was prescribed caused side effects which lead to more prescriptions, severe mood swings and weight gain.
8As noted above, the application cites discrimination on the basis of sex in the area of contracts. Asked on the application to describe what she was contracting for, the applicant stated, “A fair HRTO File HR-1636-08 hearing.” On the portion of the form asking why she believes she was discriminated against, she responded, “I think I was discriminated against because I was the employer.”
9As the representative and witness for a respondent in a prior proceeding, the Applicant was not in a contractual relationship with the respondent Tribunal. In my view, her application relates to “services” under the Code, and I will treat it as an application alleging discrimination on the basis of sex in the provision of services. I would add at this point that discrimination because one is an employer is not a ground recognized in the Code.
The Tribunal’s Response
10The respondent Tribunal, through its executive director, has requested an order dismissing this application based on lack of jurisdiction. Under Rule 13.1 of its Rules of Procedure, the Tribunal may dismiss part or all of an Application that is outside the jurisdiction of the Tribunal.
11The Tribunal makes three arguments: first, that the doctrines of judicial independence and judicial immunity apply here; second, that the application constitutes an improper collateral attack on the Tribunal’s earlier decisions; and third, that the application does not make out a prima facie case of discrimination.
12While the applicant has not raised any specific concerns with respect to the manner in which this Application is being heard, it is worth noting here that the Tribunal has separated the decision-making in this matter from any functions regarding the representation of itself as respondent. I am a part-time Member of the Tribunal. I do not have regular day-to-day dealings with the staff or other adjudicators at the Tribunal, and had no involvement in the earlier Application involving this applicant. I have had no discussions with the adjudicator in the previous decision, Ms. Reaume, concerning the present application (or the earlier one), and have had no involvement in the representation of Tribunal as a respondent.
The Applicant’s Response to the Request to Dismiss
13In her Response to the Tribunal’s request for an order dismissing the application, the Applicant states, in part, as follows:
According to my interpretation of the Statutory Powers Procedures Act the Tribunal is bond by the Act and I was entitled to (10) Right to representation, which Ms. Reaume admits denied me. I cannot find reference that it is her right to deny me. Although I feel the outcome of the trial would have been different if I was allowed to bring legal representation, this isn’t about that. My health suffered during the trial and after as a direct result of having to go through the trial on my own without proper representation.
14The Applicant has made reference to Section 10 of the Statutory Powers Procedure Act, which reads as follows:
Right to representation
- A party to a proceeding may be represented by a representative.
15The Applicant made no submissions directly addressing the jurisdictional issues raised by the respondent Tribunal.
Analysis and Findings
16Turning to the issue of the Tribunal’s jurisdiction over this application, I have concluded that the application must be dismissed for lack of jurisdiction. I will deal with each of the three respondent Tribunal arguments in turn.
17First, the Tribunal has decided in numerous cases that the doctrines of judicial immunity and judicial independence prevent the Tribunal from taking jurisdiction over applications against administrative tribunals – including the Human Rights Tribunal itself – that are based on the decision-making of those tribunals. These doctrines were explored thoroughly in Cartier v. Nairn, 2009 HRTO 2208 and Jogendra v. Human Rights Tribunal of Ontario, 2011 HRTO 322. The following passage from Jogendra, at paragraphs 49-51, is relevant:
The doctrine of judicial immunity has been considered in numerous decisions in which applications have alleged a breach of the Code by other administrative agencies, including Cartier v. Nairn, 2009 HRTO 2208; Hazel v. Ainsworth Engineered, 2009 HRTO 2180; and Robinson v. Ontario Municipal Board, 2010 HRTO 207.
The following discussion in Cartier v. Nairn explains the origins and importance of the doctrine in adjudicative settings:
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. (...)
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.
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. (...)
A number of decisions have also found that the exercise of adjudicative functions by courts and tribunals, particularly the “content, reasons and result” of adjudicative decisions, do not fall within the definition of “services” in the Code, and are therefore not within the Tribunal’s jurisdiction. See for example Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99; Lindberg v. Workplace Safety and Insurance Board, 2009 HRTO 250; Christianson v. Social Benefits Tribunal, 2009 HRTO 886; Christianson v. (Ontario) Information and Privacy Commissioner, 2009 HRTO 203; Jacob v. Workplace Safety and Insurance Board, 2009 HRTO 1483; Dann v. Wallace, 2009 HRTO 392; Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595.
18Here, the application apparently arises from the adjudicator’s decision to refuse an adjournment in order for the respondent to retain legal representation. The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, specifically sections 21 and 25.0.1, gives the adjudicator conducting the hearing the discretion to grant or refuse adjournments and to control its procedures. Thus, the Tribunal’s decision to refuse the adjournment in the earlier hearing was an adjudicative one and is protected by the doctrine of judicial immunity. Further, pursuant to the decisions in Baird and others cited in the last paragraph of the excerpt from Jogendra, reproduced above, the actions of the adjudicator were not a “service” within the meaning of that term in the Code.
19Second, I agree that at least to some extent this application is a collateral attack on an earlier decision of the Tribunal. The rule against collateral attacks was explained in Jogendra at paragraphs 57 and 58:
The rule against collateral attack holds that “a court order, made by a court having jurisdiction to make it,” may not be attacked “in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment” (Wilson v. The Queen, 1983 CanLII 35 (S.C.C.), [1983] 2 S.C.R. 594, per McIntyre J., at p. 599). As the Court said in that case “the rationale behind the rule is powerful: the rule seeks to maintain the rule of law and to preserve the repute of the administration of justice.”
While it is primarily a rule governing judicial proceedings, it has also been applied to administrative proceedings….
20While the Applicant here has stated that this application is not about the outcome of the hearing, it is nevertheless based solely on an adjudicative decision made at that hearing. The proper course of action to challenge an alleged breach of procedural fairness is through an application to the courts for judicial review. To the extent that the application seeks to overturn a procedural or final decision of the Tribunal – and it is worth noting that the applicant has asked only for an unspecified monetary remedy – it is a collateral attack and beyond the Tribunal’s jurisdiction to hear.
21Third, this application discloses no basis whatsoever for its allegation that there was discrimination on the basis of sex and thus fails to establish a prima facie case. The initial onus of establishing a prima facie case is on the applicant, as explained in the following passage from Belamine v. Laurentian University, 2010 HRTO 1407, at paragraph 20:
The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made, and which, if it is believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent. See Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.) at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that is actions were not discriminatory. It is well established that the threshold for a establishing a prima facie case of discrimination is not high. See Hobart v. Renfrew County Housing, 2010 HRTO 1154; Belso v. Regional Municipality of York Police Services Board, 2010 HRTO 1229.
22Here, beyond checking off “Sex” on an application form, the applicant has not asserted any factual basis that could support a finding that there has been discrimination on that ground. Moreover, she has stated that she feels she was discriminated against because she is an employer, which, as noted above, is not a ground recognized in the Code. There is no prima facie case of discrimination.
23For these reasons, the Application must be dismissed.
Dated at Toronto, this 2nd day of August, 2011.
“Signed by”
_________________________________
Lorne Slotnick
Member