Gregory Kogan v. Human Rights Tribunal of Ontario and David Wright, 2011 HRTO 1486

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gregory Kogan

Applicant

-and-

Human Rights Tribunal of Ontario and David Wright

Respondents

DECISION

Adjudicator: Naomi Overend

Date: August 9, 2011

Citation: 2011 HRTO 1486

Indexed as: Kogan v. Human Rights Tribunal of Ontario

WRITTEN SUBMISSIONS BY

Gregory Kogan, Applicant ) Self-represented

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, on April 19, 2011, alleging discrimination in services on the basis of race, ancestry, place of origin, citizenship, ethnic origin, creed and reprisal. The Application concerns a Decision of the Tribunal to dismiss as abandoned a previous Application to the Tribunal. The applicant has made it clear that he did not intend this to be a reconsideration application.

2A Notice of Intent to Dismiss (“NOID”) was issued on June 29, 2011 indicating that the Application appears to be outside the Tribunal’s jurisdiction because it was filed against an adjudicator and therefore subject to the doctrine of judicial immunity. The applicant filed several written communications with the Tribunal after the NOID was issued, one of which he states are his submissions in response to it. The written communications do not address the issue of judicial immunity specified in the NOID.

JUDICIAL IMMUNITY

3The applicant alleges that the respondents (i.e., the individual adjudicator as well as the Tribunal) acted unfairly towards him when the Tribunal dismissed his previous Application as abandoned after he failed to participate in a Summary Hearing held by teleconference. The applicant alleges he provided contact information in advance of that hearing and also that he tried, unsuccessfully, to participate in that call. He alleges that it was the adjudicator’s fault that he (the applicant) was unable to participate in the hearing and also the adjudicator “refused to consider the case in [his] absence.”

4The doctrine of judicial immunity has been applied by this Tribunal to shield administrative tribunals (which would include this Tribunal) and courts from Applications concerning the actions of judges and adjudicators while acting in their adjudicative capacity. This 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).

5Indeed, 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). Failure to afford the parties natural justice or fairness may result in decisions being overturned on appeal or judicial review, but does not make the adjudicator or judge personally liable for such errors. Likewise the court or tribunal is not liable in those circumstances.

6Accordingly, the Application falls outside the jurisdiction of the Tribunal and is dismissed.