Jogendra v. Ontario (Human Rights Tribunal)

2010-05087-I

2011-02-15

2011 HRTO 322

Ontario Human Rights Tribunal

CHRR Doc. 11-0822

Regis Jogendra Applicant

v.

Human Rights Tribunal of Ontario and David Muir Respondents

Date of Decision: February 15, 2011

Before: Human Rights Tribunal of Ontario, Pamela Chapman

File No.: 2010-05087-I

Appearances by:

Regis Jogendra, on his own behalf

Glenn Frelick, Counsel for the Respondents

ADMINISTRATIVE TRIBUNALS — test for reasonable apprehension of bias — judicial immunity — HUMAN RIGHTS TRIBUNALS — JURISDICTION — authority of Tribunal to inquire into limits of its own jurisdiction and rule on its own independence — actual bias and reasonable apprehension of bias — judicial immunity — INTERPRETATION OF STATUTES — definition of "services" — RES JUDICATA AND ESTOPPEL — issue estoppel — PROCEDURE — adjudicating issue dealt with in prior proceeding as abuse of process — COMPLAINTS — dismissal of complaint

Summary: The Human Rights Tribunal of Ontario concluded that it can decide whether an application is properly before it, even when the application concerns the Tribunal and/or one of its adjudicators as a respondent.

In this application, Regis Jogendra alleged that the Tribunal and David Muir, a Vice-Chair, discriminated against him because of his race, ethnic origin and ancestry by ruling against him in two separate complaints. Mr. Jogendra further claimed that the Tribunal could not adjudicate the new complaint as it would raise a reasonable apprehension of bias. He requested that a "disinterested party" be appointed under the Public Officials Act to hear the matter.

Mr. Jogendra is a former Justice of the Peace. In his original complaints he alleged that the Attorney General of Ontario, and some personal respondents, did not assign him a full-time presiding appointment because of his race, ethnic origin and ancestry. He also alleged that the same respondents failed to indemnify him for legal costs incurred in defending himself against charges that arose within the scope of his employment, also because of his race, ethnic origin and ancestry. Mr. Jogendra's inquiries about the failure to appoint him to a full-time position were made in 2001, but he did not file a human rights complaint until 2007. The Tribunal, in the person of David Muir, dismissed both complaints on the grounds that they were out of time and had no prospect of success. Mr. Jogendra then made a request for reconsideration on the grounds that Vice-Chair Muir had a conflict of interest because he had been employed as a Crown Counsel a decade earlier. The Tribunal dismissed the application for reconsideration.

In the new complaint, Mr. Jogendra alleges that Vice-Chair Muir discriminated against him on the basis of race, ethnic origin and ancestry by ruling against him. The discrimination is alleged to result from the fact that Mr. Jogendra is from a different race, ethnic origin and ancestry than the respondents in his original complaints and than David Muir.

The Tribunal found that Mr. Jogendra's new complaint cannot succeed because Tribunal adjudicators are protected by judicial immunity when they are executing their functions as legal decision-makers. The Tribunal's decision-making function is not a service customarily available to the public. Tribunal decisions can be appealed, but they cannot be the subject of human rights complaints.

In addition, the Tribunal found that Mr. Jogendra is making "a bald attempt to re-litigate his unsuccessful earlier applications by re-characterizing them as further alleged breaches of the Code". He relies on a "completely un-particularized claim of discrimination which is nothing more than a hypothesis that any decision made which does not support his claims must have been made because of his racial and ethnic origins". Permitting Mr. Jogendra to proceed would violate the principles of adjudicative economy, consistency, finality and integrity. The Tribunal concluded that it would be an abuse of process.

Mr. Jogendra contends that for the Tribunal to hear his new complaint would violate the principle that no one should be a judge in his own claim. The question for the Tribunal at the outset is whether it can determine if the case is properly before it. The Tribunal finds that it is faced with an application, which according to clear law concerning judicial and adjudicative immunity cannot be brought, and which also undeniably constitutes an abuse of process. The Tribunal member hearing the application has had no previous involvement with the case, or any contact with Vice-Chair David Muir. In these circumstances, does the allegation of bias prevent the Tribunal from deciding whether the case can proceed?

The Tribunal decided that it can determine whether the case is properly before it even when the allegation is against the Tribunal. So long as the kind of precautions taken in the present case are observed, a Tribunal adjudicator who is not named as an individual respondent may perform this function without giving rise to a reasonable apprehension of bias.

Finally, the Tribunal concluded that this application cannot be brought against the respondent Muir or the Human Rights Tribunal of Ontario because of the doctrine of judicial immunity, and because the application constitutes an abuse of process.

CASES CITED

Baird v. Ontario (Workplace Safety and Insurance Appeals Tribunal) (2009), CHRR Doc. 09-0154, 2009 HRTO 99: 51

Boucher v. Public Accountants Council for the Province of Ontario, [2000] O.J. No. 3126 (QL) (Sup.Ct.): 101

Caccamo v. Canada (Minister of Manpower and Immigration), 1977 CanLII 3079 (FCA), [1978] 1 F.C. 366 (C.A.): 78

Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 (C.A.): 66

Cartier v. Northeast Mental Health Centre (No. 4) (2009), CHRR Doc. 09-2875, 2009 HRTO 2208: 49

Chainauskas Estate v. Reed (2009), 251 O.A.C. 209, 2009 ONCA 572: 71

Christianson v. Ontario (Information and Privacy Commissioner) (No. 3) (2009), CHRR Doc. 09-0310, 2009 HRTO 203: 51

Christianson v. Ontario (Social Benefits Tribunal) (No. 1) (2009), CHRR Doc. 09-1259, 2009 HRTO 886: 51

Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, 1976 CanLII 2: 73

Dann v. Wallace (No. 2) (2009), CHRR Doc. 09-0556, 2009 HRTO 392: 51

Flamborough (Township) v. National Energy Board (1984), 55 N.R. 95, [1984] F.C.J. No. 526 (QL) (C.A.): 79

Hazel v. Ainsworth Engineered Corp. (2009), 69 C.H.R.R. D/155, 2009 HRTO 2180: 49

Jacob v. Workplace Safety and Insurance Board of Ontario (No. 1) (2009), CHRR Doc. 09-1997, 2009 HRTO 1483: 51

Jogendra v. Ontario (Attorney General) (No. 1) (2008), CHRR Doc. 08-717, 2008 HRTO 153: 8

Jogendra v. Ontario (Attorney General) (No. 2) (2008), CHRR Doc. 08-749, 2008 HRTO 181: 9

Jogendra v. Ontario (Attorney General) (No. 3) (2008), CHRR Doc. 08-976, 2008 HRTO 340: 10

Jogendra v. Ontario (Attorney General) (No. 4) (2009), CHRR Doc. 09-0057, 2009 HRTO 36: 10

Jogendra v. Ontario (Attorney General) (No. 5) (2009), CHRR Doc. 09-0458, 2009 HRTO 322: 7

Jogendra v. Ontario (Attorney General) (No. 6) (2009), CHRR Doc. 09-0795, 2009 HRTO 580: 20

Judges v. Saskatchewan (Attorney General), 1937 CanLII 368 (UK JCPC), [1937] 2 D.L.R. 209 (P.C.): 77

Lindberg v. Workplace Safety and Insurance Board of Ontario (No. 1) (2009), CHRR Doc. 09-0367, 2009 HRTO 250: 51

Makowsky v. John Doe, 2007 BCSC 1231; 2008 BCCA 112: 62

Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97, 2000 CanLII 16946 (C.A.): 74

R. v. Brown (2003), 64 O.R. (3d) 161, 2003 CanLII 52142 (C.A.): 71

R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706, 1998 CanLII 820: 58

R. v. S. (R.D.), [1997] 3 S.C.R. 484, 1997 CanLII 324: 74

R. v. Valente (No. 2), [1985] 2 S.C.R. 673, 1985 CanLII 25: 72

Robinson v. Ontario (Municipal Board) (No. 1) (2010), CHRR Doc. 10-0231, 2010 HRTO 207: 49

S.E.I.U., Local 204 v. Johnson, 1997 CanLII 12280 (Ont. S.C.): 93, 99

Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63: 65

Traversy v. Ontario (Human Rights Tribunal) (No. 1) (2011), CHRR Doc. 11-0823, 2011 HRTO 323: 3, 84

Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, 2003 SCC 45: 74

Wilson v. The Queen, [1983] 2 S.C.R. 594, 1983 CanLII 35: 57

Zaki v. Ontario (Community and Social Services) (No. 1) (2009), 71 C.H.R.R. D/122, 2009 HRTO 1595: 51

LEGISLATION CITED

Ontario

Environmental Protection Act, R.S.O. 1990, c. E.19: 58

Human Rights Code, R.S.O. 1990, c. H.19

s. 34: 1

s. 45.7: 19

s. 45.8: 83

s. 53(3): 2

Rules of Procedure (Part IV)

r. 13: 83

r. 19A: 83

r. 26: 83

Rules of Procedure (ss. 53(3) & 53(5)), r. 25.7: 20

Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A: 93

Public Officers Act, R.S.O. 1990, c. P.45, s. 16: 32, 40, 85, 92, 101

1This is an application filed on March 9, 2010, under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The application alleges discrimination and reprisal on the basis of race, colour, ancestry, place of origin, citizenship and ethnic origin, in the provision of goods, services and facilities by the respondents. The provision of services alleged to be discriminatory are those provided by the Human Rights Tribunal of Ontario (the "HRTO") and David Muir, a Vice-chair of the HRTO, in the adjudication of two earlier and separate complaints filed by the applicant under s. 53(3) of Part VI of the Code, in Tribunal files T-0026-08 and T-0027-08. The application complains about the rulings of the Vice-chair assigned to adjudicate the earlier applications, on preliminary matters, during the Case Resolution Conference ("CRC"), and in a subsequent request for reconsideration.

3This is the first application to the HRTO to allege a breach of the Code by the HRTO and/or one of its adjudicators in which one of the parties alleges that there is a reasonable apprehension of bias if the HRTO proceeds. Thus, it raises difficult issues about whether, and to what extent, the Tribunal can process and adjudicate an application against itself. Several such applications have now been filed, and this decision is released together with a companion case, Traversy v. Human Rights Tribunal of Ontario (No. 1), 2011 HRTO 323 [CHRR Doc. 11-0823]. Because this is a case of first impression, I will spend considerable time exploring the issues raised by these applications, including reasonable apprehension of bias, abuse of process, adjudicative immunity, and the potential application of the Public Officers Act, R.S.O. 1990, c. P.45, as amended ("POA").

4As noted in the Tribunal's Case Assessment Direction ("CAD") of July 23, 2010, the HRTO has separated the decision-making in this matter from any functions regarding the representation of the respondents. I am a part-time Member of the HRTO, based in Ottawa. 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 applications filed by Mr. Jogendra, or indeed the present application, prior to its assignment to me following expiry of the final deadline for submissions, on October 4, 2010. I have had no contact with the Vice-chair named as a respondent in this matter concerning the present application (or the earlier ones), and have had no involvement in the representation of the HRTO or Vice-chair Muir as respondents.

THE EARLIER APPLICATIONS

5In order to understand the issues in this case fully, it is necessary to explore the facts underlying the allegations, and the events following the filing of the application.

6As noted above, the applicant filed two earlier applications to the HRTO, which are the subject of the present application, on July 24, 2008. The first application was brought against the Attorney General of Ontario as an organization respondent, as well as against Michael Bryant, a former Attorney General, Chief Justice Brian Lennox and Associate Chief Justice Donald Ebbs, of the Ontario Court of Justice, as personal respondents. The second application named Kenneth Campbell, of the Attorney General's office, as a personal respondent in addition to the Attorney General as organization respondent.

7The Tribunal's decision dated March 19, 2009, 2009 HRTO 322 [CHRR Doc. 09-0458], describes the two applications as follows [at § 2]:

In Application No. T-0026-08, the applicant, a former Justice of the Peace, alleges that the respondents' failure to assign him a full-time presiding appointment amounted to discrimination with respect to employment on the basis of ancestry, colour, ethnic origin, place of origin and race (the "Progression Application")

In Application No. T-0027-08, the applicant alleges that the respondents' failure to indemnify him for legal costs incurred in defending charges arising within the scope of his employment amounted to discrimination with respect to employment on the basis of ancestry, colour, ethnic origin, place of origin and race (the "Legal Costs Application").

8The progress of the two applications is chronicled in a series of interim decisions, the final decision, and then a reconsideration decision. On October 14, 2008, the HRTO responded to various preliminary objections raised in the responses to the complaint by making numerous procedural orders, and ruling that all preliminary matters would be dealt with at a Case Resolution Conference scheduled for February 6, 2009. See 2008 HRTO 153 [CHRR Doc. 08-717].

9A further interim decision, dated October 22, 2008, clarified the order in which the preliminary objections would be heard, and directed the parties to be ready to deal with all those raised. See 2008 HRTO 181 [CHRR Doc. 08-749].

10On December 3, 2008, and then again on January 12, 2009, the HRTO issued further interim decisions dealing with various requests for production made by the applicant, which had been the subject of significant correspondence between the parties. See 2008 HRTO 340 [CHRR Doc. 08-976] and 2009 HRTO 36 [CHRR Doc. 09-0057].

11The final interim decision, 2009 HRTO 36 [CHRR Doc. 09-0057], refused to order the production of the documents requested, on the basis that they appeared to deal with the merits of the applications, and not the preliminary issues that had been scheduled to be heard at the CRC. The final interim decision notes that the applicant had been given the opportunity to file written submissions on the issue of relevance, but declined to do so other than to make a general claim that the documents requested were relevant. Vice-chair Muir issued the last two of these interim rulings; in each case, he did not remain seized of the applications on the merits.

12A CRC hearing was convened on February 6, 2009, before Vice-chair Muir. The applicant attended on his own behalf. The final decision records various oral rulings made at the outset of the CRC. In particular, the Vice-chair heard a request by the applicant that he recuse himself, based on the fact that Muir had issued an interim decision in the same matters, and had ruled that he was not seized. No other allegations of bias or conflict of interest were alleged in the request for a recusal. Vice-chair Muir ruled that the applicant's submissions did not raise a reasonable apprehension of bias, and refused to recuse himself, proceeding to hear the preliminary objections that had been scheduled for the CRC.

13The Vice-chair also ruled that the applicant would be permitted to make a tape recording of the proceedings as he requested, on the basis that it would be difficult for him to make notes and submissions at same time. The final preliminary matter dealt with, which is described in the final decision, was the applicant's demand that counsel for the respondents be removed, on a number of grounds set out in the final decision. Vice-chair Muir refused the applicant's request that he rule that the respondent counsel could not properly appear before the HRTO, for the reasons set out in the decision, and proceeded to hear from all parties in order to deal with the preliminary objections set out in the response.

14The final decision contains the following summary of the preliminary issues dealt with at the CRC on February 6, 2008, at § 18:

There are a number of grounds advanced by the respondents supporting an early dismissal of these Applications. All respondents state that the two Applications are out of time as the facts giving rise to them occurred many years ago and there is no evidence that the lengthy delays in bringing the human rights complaints were incurred in good faith. All respondents also state that the Applications are frivolous, vexatious and an abuse of process and for that reason as well should be dismissed. The respondents in the Progression Application also state that the Tribunal does not have jurisdiction over this application because the applicant was not an employee and the Ontario Court of Justice enjoys judicial and administrative immunity.

15The respondents had filed written submissions supporting these requests, and therefore made only brief opening statements at the CRC. The applicant made lengthy oral arguments, in addition to filing lengthy written arguments, in opposition to the requests for early dismissal, as reviewed in the final decision.

16There is no need to record at any length the consideration of the parties' respective submissions on these issues; they are clearly set out in the decision. The decision records the facts underlying the applications, and in particular sets out the timeframe in which the conduct complained of occurred, and the various dates on which the applicant brought different legal and administrative proceedings concerning the decision not to assign him a full-time presiding appointment as a Justice of the Peace, and the refusal to reimburse his legal costs.

17The HRTO's conclusions on the requests for early dismissal are set out in § 29 to 46 of the decision. The key determinations on the Progression Application are as follows:

The Progression Application is dismissed. The allegations relate to the alleged failure of the respondents to progress the applicant to full-time presiding status along with the other JPs appointed with him in 1993. Those decisions were made between 1997 and the end of 2001. The applicant's first inquiries about what he described in the underlying complaint as discrimination began in February 2002. He then began to ask for a retroactive adjustment to his salary as if he had been progressed, in October 2003. As noted above his complaint was not filed with the Commission until March 2, 2007.

The applicant offers no real explanation for this delay other than that he continued to ask the respondents to change their position on the various issues discussed above, and they continued to refuse...

The applicant is a sophisticated litigant. He was a Justice of the Peace. He has been legally trained and was a barrister and solicitor in another common law jurisdiction. He is also not shy, as the voluminous materials submitted in this application attest, about asserting his rights. I am satisfied he has not established any good faith basis on which I might exercise my discretion to permit this application to proceed.

18The HRTO declined to find that the Legal Expenses Application was untimely, but went on to consider the claim of the respondents that this application should be dismissed as an abuse of process:

The respondents also take the position that the Legal Expenses Application is frivolous, vexatious and an abuse of process. In large part this submission is predicated on the respondents' position that it is entirely without merit. While the respondents used the terms "frivolous" and "vexatious" in their submissions, which is language used in the repealed provisions of s. 34(1)(b) of the Code, this issue now falls to be determined under the principle of abuse of process.

The respondents state that the applicant's reliance upon the doctrine of judicial immunity as his foundation for the request for indemnification of his legal fees is, in the circumstances here, preposterous. Accordingly the respondents say that there can be no basis for claiming that the Attorney General's denial of the request was discriminatory. I agree.

An application that has absolutely no chance of success, is an abuse of process and should be dismissed (see Currie v. Halton (Region) Police Services Board, 2003 CanLII 7815 (ON CA), [2003] O.J. No. 4516 (QL) (C.A). This is such an application.

For all of the above reasons these two applications are dismissed.

19Following the release of the final decision, the applicant contacted the HRTO numerous times to complain about the decision, and took various steps to assert his position that the HRTO should proceed with his applications. First, on April 14, 2009, he filed a Request for Reconsideration under s. 45.7 of the Code:

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

20Vice-chair Muir decided the Request for Reconsideration on the basis of written submissions, as provided for by r. 25.7 of the HRTO's Transition Rules. The reconsideration decision dated May 6, 2009, 2009 HRTO 580 [CHRR Doc. 09-0795], dismissed the Request for Reconsideration.

21The reconsideration decision includes the following key passages [at § 3—7]:

Rule 25 of the Tribunal's Rules of Procedure for Transitional Applications under Section 53(3) and 53(5) of the Code provides any party may request reconsideration of a final decision of the Tribunal within 30 days of the date of the decision. Rule 25.5 provides:

A Request for 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.

... None of the applicant's submissions touch on the matters outlined in paragraphs a, b, or c. In essence, the applicant seeks to re-argue issues heard at the Case Resolution Conference. It is evident that the applicant does not agree with the outcome of that hearing.

The applicant argues I was in a conflict of interest being an "ex-Crown Attorney/Counsel with the Ministry of the Attorney General" presiding in a matter involving a Crown Attorney represented by another Crown Counsel. This might possibly fall within the ambit of Rule 25.5(d). This information came to the applicant's attention during the Case Resolution Conference. The applicant did not raise any concerns about it at that time and, as such, might be said to have waived his right to do so.

In any event, although I was employed as a Crown Counsel over a decade ago I have never been a Crown Attorney and have had no relationship with the Ministry of the Attorney-General since 1992. The assertion that these facts put me in a conflict of interest is entirely without merit.

22Following release of the reconsideration decision, the applicant continued to write to the HRTO complaining about the decisions on his applications, and complaining about the fact that Vice-chair Muir had decided the cases. In a letter dated May 22, 2009, the Counsel to the Chair wrote to the applicant, in response to his correspondence, advising him of his legal rights to dispute the HRTO's rulings:

Vice-chair Muir has dismissed your applications and has refused to reconsider that decision. There is no further adjudicative remedy or process available to you from the Tribunal.

If you wish to challenge those decisions you may bring an application for judicial review in the Divisional Court. Alternatively, if you wish to complain about some aspect of the Tribunal's practices and procedures you may seek the assistance of the provincial Ombudsman or make a complaint to the Tribunal in accordance with the Tribunal's complaints policy available on our website.

23Throughout May, June, July and August 2009, the applicant continued to write to the HRTO, directing letters to Vice-chair Muir, Counsel to the Chair, the Registrar, and eventually to the Chair. No application for judicial review was filed on either application.

24On March 8, 2010, the present application was filed.

PRESENT APPLICATION

25As noted above, the applicant now complains that Vice-chair Muir has discriminated against him, and reprised against him, on the basis of race, colour, ancestry, place of origin, citizenship and ethnic origin, in the provision of services. The description of the complaint is lengthy, but the particular allegations of discrimination relate entirely to the conduct of Vice-chair Muir in:

(a) making interim decisions in which he ruled against the applicant;

(b) failing to recuse himself at the outset of the hearing;

(c) accepting submissions and statements of fact made by the respondents during the CRC on February 6, 2009;

(d) dismissing both the progression application and legal costs application in the decision of March 19, 2009;

(e) failing to recuse himself on the request for reconsideration; and

(f) dismissing the request for reconsideration by decision dated May 6, 2009.

26These actions by the Vice-chair are alleged to constitute discrimination on the basis that:

the applicant is of different race, colour, ancestry, place of origin, original citizenship, ethnic origin etc. as compared with those of, not only the respective respondents against whom he made his original complaint and those who acted as counsel for them, but also David Muir.

The actions complained of are also characterized as a reprisal against the applicant.

27On April 21, 2010, the Registrar of the HRTO wrote to the applicant, and to the respondents, acknowledging the filing of the application. The letter includes the following relevant statements:

In view of the fact the Application names both the Tribunal and one of its Vice-chairs as respondents, there may be an issue as to whether the Tribunal can adjudicate this matter. In particular, it may be that one or more of the parties take the position that a reasonable apprehension of bias exists in these circumstances.

As a result, the Tribunal directs any party who wishes to raise an issue of a reasonable apprehension of bias, jurisdiction or other impediment to the Tribunal hearing and deciding this application to file written submissions in support of that position...

If any party takes the position that the Tribunal is unable to hear this Application, section 16 of the Public Officers Act... provides for a process by which, on application to the Ontario Court, the Court may appoint a "disinterested person to do or perform the act, matter or thing in question".

28As well, the Registrar's letter of April 21, 2010 directed the parties to the following issue:

In addition, the Application appears to challenge the decision or outcome of an adjudicative process. The parties' attention is direction to the Tribunal's decisions in... In those decisions the Tribunal dismissed the applications on the basis it did not have jurisdiction to consider claims against an adjudicator given the principle of judicial immunity. Further, the Tribunal has held on a number of occasions that "services" within the meaning of the Code does not include the outcome or decision resulting from adjudications by other statutory bodies...

The Tribunal will provide further case directions to the parties seeking submissions on these jurisdictional issues if necessary.

29In response to this request for submissions, the applicant wrote to the HRTO on April 29, 2010, objecting to the Registrar's jurisdiction to issue the directions contained in the letter, and insisting that the HRTO require that responses to the application be filed immediately. He did not comment on the issue of bias or take issue with the application being heard by the HRTO; to the contrary, he seemed to object to the HRTO having interfered with the normal processing of the application by requesting submissions on this issue.

30On May 27, 2010, counsel for the respondents wrote to the Registrar and the applicant, taking the position that there was no impediment to the HRTO proceeding to adjudicate the application.

31On June 4, 2010, a Notice of Intent to Dismiss the Application ("NOID") was issued by the Registrar, containing the following directions:

Neither party takes issue with the Tribunal adjudicating this Application. The Tribunal has reviewed the Application. It appears the Application is outside the Tribunal's jurisdiction because:

· The respondent is an arbitrator, adjudicator or judge. The Tribunal has stated that it has no jurisdiction to hear applications against courts and tribunals based on the execution of adjudicative duties or decision-making because of the doctrine of judicial immunity...

The applicant must provide written submissions responding to the issue identified above...

The Tribunal will consider the submissions before deciding whether to dismiss or proceed with the Application...

32The applicant's response to the NOID was delivered by letter dated June 16, 2010. It was not copied to counsel for the respondents. In that letter, he makes reference to a motion before the Superior Court of Justice to appoint a "disinterested person" pursuant to s. 16 of the Public Officers Act.

33The applicant then goes on to take issue with the statement in the NOID that "neither party takes issue with the Tribunal adjudicating this Application", asserting that there is "not only a reasonable apprehension of bias, but also a real likelihood of bias and the Tribunal is disqualified to adjudicate the matter since it would also be incompatible to do so", and objecting to "the Tribunal dealing with the matter in any manner whatsoever". He does not address himself to the issue of adjudicative immunity, other than to state that the decisions cited in the NOID "do not apply to the case at bar... are in-house decisions and are neither binding nor are of any force or avail in law".

34Otherwise, the applicant's letter makes a general claim that the "HRTO has full, complete and unfettered jurisdiction to adjudicate the matter against a Member of the Tribunal, certainly not by itself, as it is disqualified, but through some 'disinterested person' as lawfully may, appointed by the Superior Court". The letter concludes with another reference to an application to the Court: "since the matter is now seized and before the Superior Court of Justice you and the Tribunal are enjoined by law not to take any steps or deal with the case in any manner whatsoever".

35The same position was reiterated by the applicant in another letter dated June 22, 2010, in which he requested that "neither the HRTO nor the Registrar take any steps whatsoever in the case, which is seized and before the Superior Court of Justice, until it has finally dealt with the matter". Similar statements were made in a further exchange of correspondence between the applicant and the HRTO during June and July, concerning the applicant's refusal to deliver copies of his correspondence to counsel for the respondents.

36By letter dated July 14, 2010, the Registrar directed the applicant to provide notice of any proceedings brought under the POA to counsel for the respondents and to the HRTO. As well, it directed the parties to make submissions to the HRTO, "if another proceeding has been commenced", on whether the processing of the application should be suspended until completion of that process. If not, the applicant was again directed to immediately deliver his submissions on the preliminary jurisdictional issue raised in the NOID. The Registrar's letter went on to state that:

If the applicant fails to comply with these directions by July 28, 2010 the HRTO may make its decision on the materials in the file or may dismiss the application as abandoned.

37By letter dated July 23, 2010, the applicant again refused to deliver copies of any correspondence to counsel for the respondents, and refused to provide notice of any proceedings under the POA, saying only that he would provide notice pursuant to the Rules of Civil Procedure, if required, to any parties entitled to notice under those rules. He reiterated that the HRTO was "enjoined by law not to take any steps whatsoever in respect of" the application.

38This letter was followed by a CAD issued by the Interim Chair of the HRTO on July 23, 2010. This CAD notes that the HRTO "has separated the decision-making in this matter from any functions regarding the representation of the respondent". It also confirms the requirement that the applicant deliver copies of all material filed with the HRTO to counsel for the respondents. The applicant was directed to deliver to counsel for the respondents, and to file with the Tribunal "copies of the Court materials and confirmation of their filing. If the applicant fails to do so, the application may be dismissed as abandoned". The respondents were also given an opportunity to provide submissions on the applicant's insistence that the HRTO suspend any further steps pending Court proceedings.

39The applicant sent a fax to the HRTO on August 3, 2010, but it is not in the file. As he continued to refuse to copy his correspondence with the HRTO to counsel for the respondents, it was returned to him by the Registrar, with a letter indicating that no correspondence would be accepted unless it was copied to all parties as directed and in accordance with the HRTO's Rules.

40Eventually the Tribunal learned that the applicant had indeed initiated an application pursuant to the POA. The details of these proceedings are described in a decision of Corrick J., of the Superior Court of Justice, dated September 28, 2010 (court file CV-10-00404029). According to this decision, Mr. Jogendra filed an ex parte application under s. 16 of the POA, seeking an order appointing a "disinterested person" to adjudicate the present application, on May 31, 2010. He appeared before Justice Himel on June 14, 2010, ex parte, and the record was endorsed as follows:

This matter is premature in that Mr. Jogendra has not filed written submissions and received the response of the Tribunal as provided in the letter of April 21, 2010. This motion must be brought on notice to the Human Rights Tribunal after the Tribunal has determined whether it is satisfied that a reasonable apprehension of bias has been raised. This motion cannot proceed for these reasons and a new date on notice will have to be scheduled at a later date.

41The applicant did not have an amended notice of application issued by the court naming the HRTO and David Muir as respondents, and did not serve the endorsement on the respondents. However, he delivered material to the HRTO on July 26, 2010, concerning a motion returnable July 30, 2010. On that date, the matter was adjourned to the week of August 9, 2010. On August 13, 2010, there was a further appearance before Justice Himel, at which time the HRTO and Vice-chair Muir were added as responding parties, a timetable for the filing of various materials was established, and the applicant's motion was scheduled for March 4, 2011.

42The applicant brought a further motion seeking to set aside or vary the orders of Justice Himel dated June 14 and August 13, 2010, and to have the respondents noted in default. That motion was heard on September 27, 2010, before Justice Corrick. The motion was dismissed by decision dated September 28, 2010. That decision includes the following observations concerning the application and the Court's decision:

Mr. Jogendra has failed to satisfy the criteria set out in rule 37.14 to set aside or vary an order...

At the heart of Mr. Jogendra's argument is that Justice Himel's orders were made without jurisdiction and contrary to law. Mr. Jogendra's motion to vary is in essence an appeal of Justice Himel's orders. However, Mr. Jogendra has not appealed Justice Himel's orders... Appeals from interlocutory orders of a judge of the Superior Court lie to the Divisional Court. Rule 62.02 provides that such appeals require leave, and requires that the notice of motion for leave be served within seven days after the making of the order to be appealed.

For the foregoing reasons, I dismiss Mr. Jogendra's motion to set aside or vary Justice Himel's orders...

I also dismiss Mr. Jogendra's motion to note the respondents in default...

43As a result of these various proceedings initiated by the applicant, there is a hearing scheduled for March 4, 2011, to hear his motion under the POA for the appointment of a "disinterested person" to adjudicate the present application.

44After the HRTO was made aware of these proceedings, a further CAD was issued by the Interim Chair on September 13, 2010. The CAD references the endorsement of Justice Himel, and the direction that the HRTO should decide the issue of reasonable apprehension of bias before the Court matter proceeds. The parties were directed to provide written submissions on two issues: whether the HRTO should decide the issue of reasonable apprehension of bias at this time; and, secondly, whether there is a reasonable apprehension of bias that prevents any HRTO member from hearing the case. The applicant's submissions were due by October 4, 2010, and he was reminded that a failure to copy correspondence to counsel for the respondents would result in the rejection and return of any submissions delivered to the HRTO. A further letter was received from the applicant, in September 2010, but it does not appear in the file, as it was not delivered to counsel for the respondents as required, and was thus returned.

Adjudicative Immunity and Abuse of Process as Preliminary Issues

45As noted in this review of the facts, there are serious questions about the legal foundation for the present application, and whether it can properly be brought in its present form, and in this forum, leaving aside any issue as to reasonable apprehension of bias.

46In the Registrar's letter dated April 21, 2010, the Tribunal asked the parties to address the issue of whether or not it has jurisdiction over the application, having regard to its earlier decisions on the issue of adjudicative immunity. It followed that request by issuing the NOID on June 4, 2010, and, in subsequent correspondence, on July 14, 2010, confirmed that the issue of jurisdiction would be decided, or the application dismissed as abandoned, if the applicant failed to comply with its directions concerning submissions on the issue.

47There is little question that the present application would have been dismissed following this correspondence, were it not for the other issue raised in the same letters, and the applicant's parallel application to the Court: the issue of reasonable apprehension of bias, given that the application named the Tribunal and one of its members as respondents.

48The jurisdictional issue arising from the principle of adjudicative immunity is explained clearly in the NOID issued shortly after the filing of the present application:

... [T]he Application is outside the Tribunal's jurisdiction because... [t]he respondent is an arbitrator, adjudicator or judge. The Tribunal has stated that it has no jurisdiction to hear applications against courts and tribunals based on the execution of adjudicative duties or decision-making because of the doctrine of judicial immunity...

49The 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 (No. 4), 2009 HRTO 2208 [CHRR Doc. 09-2875]; Hazel v. Ainsworth Engineered, 2009 HRTO 2180 [reported 69 C.H.R.R. D/155]; and Robinson v. Ontario Municipal Board (No. 1), 2010 HRTO 207 [CHRR Doc. 10-0231].

50The following discussion in Cartier v. Nairn explains the origins and importance of the doctrine in adjudicative settings [at § 12—14, 16]:

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 [37 C.H.R.R. D/368] (leave ref'd [2000] No. 213 (QL)), 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 [reported 67 C.H.R.R. D/268], 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...

51A 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 [CHRR Doc. 09-0154]; Lindberg v. Workplace Safety and Insurance Board (No. 1), 2009 HRTO 250 [CHRR Doc. 09-0367]; Christianson v. Social Benefits Tribunal (No. 1), 2009 HRTO 886 [CHRR Doc. 09-1259]; Christianson v. Ontario (Information and Privacy Commissioner (No. 3)), 2009 HRTO 203 [CHRR Doc. 09-0310]; Jacob v. Workplace Safety and Insurance Board (No. 1), 2009 HRTO 1483 [CHRR Doc. 09-1997]; Dann v. Wallace (No. 2), 2009 HRTO 392 [CHRR Doc. 09-0556]; Zaki v. Ontario (Community and Social Services) (No. 1), 2009 HRTO 1595 [reported 71 C.H.R.R. D/122].

52As reviewed clearly in the facts set out above, the applicant in the present case complains about the exercise by the respondents of the adjudicative powers granted by the Code. His allegations relate specifically and entirely to the interim decisions, the procedural decisions made during the course of the CRC, the final decision, and then the reconsideration decision. He complains that the HRTO has made the wrong decision, and that the Vice-chair was biased against him because he ruled against the applicant. The applicant hypothesizes that the Vice-chair ruled against him because he is of a different racial and ethnic origin than the applicant, and this is the basis of his claim of discrimination.

53There is no question that the allegations made in the present application relate entirely to the "content, reasons and result" of adjudicative decisions, and therefore do not relate to "services" within the meaning of the Code. As well, the actions of the respondents which are complained of were all adjudicative in nature, and the doctrine of judicial immunity would therefore prevent an application being made against them. If this application was made against an administrative tribunal other than the HRTO, then it would be dismissed on a preliminary basis, pursuant to the HRTO's rules and well-established jurisprudence.

54In addition, this application would face dismissal on a preliminary basis as a clear abuse of process. As is clear from the review of the facts above, this application is an attempt to relitigate matters already decided by the Tribunal, through the filing of a claim alleging that those decisions are discriminatory, which constitutes a collateral attack, and is prohibited by the doctrine of issue estoppel.

55First, the application raises various issues that should properly have been the subject of a different proceeding than a claim that the Tribunal, or an individual adjudicator, has breached the Code. The applicant essentially raises two issues: first, he alleges that Vice-chair Muir was biased in his approach to the initial hearing of his original applications, and in their reconsideration, which constitutes an allegation of a breach of procedural fairness. Second, he disputes the outcome of the final decision and its reconsideration: he asserts that the decisions, authored by Vice-chair Muir, are wrong.

56While the applicant made several complaints to the HRTO, asserting these claims after the HRTO issued its decisions, he did not bring an application for judicial review. This is the appropriate — and only — legal course of action where a party to an application which has been decided by the HRTO is of the view that there has been a breach of procedural fairness, such as bias, or that a tribunal's final decision does not meet the standard of reasonableness. To seek review of the HRTO's decisions by filing a fresh application, which makes a bald allegation that those decisions are discriminatory, constitutes a collateral attack, and is thus improper.

57The 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, [1983] 2 S.C.R. 594 at 599, per McIntyre J.). 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".

58While it is primarily a rule governing judicial proceedings, it has also been applied to administrative proceedings. The most common manifestation of the problem in administrative settings is where a party against whom an order has been made does not avail itself of available avenues of appeal or judicial review, but then seeks to impugn the original order when penal consequences are imposed arising from a breach of the order. In R. v. Consolidated Maybrun Mines Ltd., [1998] 1 S.C.R. 706, 1998 CanLII 820, for example, the Ontario Ministry of Environment issued an order requiring the owner of an abandoned mine to take corrective action, pursuant to the Environmental Protection Act [R.S.O. 1990, c. E.19]. The owner elected to disregard the order, and did not pursue an appeal to the Environmental Appeal Board. When charged with non-compliance, it argued for the first time that the order was invalid, and this defence was upheld by the trial judge.

59Both the Ontario Court of Appeal, and then the Supreme Court of Canada, found that the trial judge had exceeded his jurisdiction in violation of the rule against collateral attack. In applying the rule in these circumstances, the Supreme Court emphasized the importance of maintaining the integrity of the administrative justice system at § 26—27:

... in resolving the problem of collateral attacks on administrative orders, it is necessary to bear in mind the role and importance of administrative structures in the organization of the various sectors of activity characteristic of contemporary society...

In order to ensure the integrity of these administrative structures, while at the same time seeking to protect the rights of individuals affected by government actions, the legislature is free to set up internal mechanisms and establish appropriate forums to enable such individuals to assert their rights...

60One quote from that case is particularly apposite the present case, in light of the repeated emphasis in the applicant's correspondence (at § 25):

... the rule of law does not imply that the procedures for achieving it can be disregarded, nor does it necessarily empower an individual to apply to whatever forum he or she wishes in order to enforce compliance with it.

While the facts in this case are perhaps an unusual example of collateral attack, the concerns expressed in R. v. Consolidated Maybrun Mines Ltd. should apply equally to the filing of a new application alleging discrimination by the HRTO, but in fact complaining about its previous rulings, where no judicial review has been initiated seeking to overturn those same rulings.

61The application also raises concerns about issue estoppel. In this case, the very matters about which the applicant now complains, and on which he bases his application to the Court for the appointment of a disinterested person, were dealt with in the HRTO's decisions. As reviewed above, the applicant first accused Vice-chair Muir of bias at the outset of the proceeding, and then again in the request for reconsideration. In both cases the adjudicator responded as he was clearly mandated to do: by ruling on the issue of bias.

62It is a well-established principle of administrative law that both a judge, and an administrative adjudicator, must rule on any allegation of a reasonable apprehension of bias, by applying the relevant legal principles, and should not simply recuse him or herself any time an allegation is made: see for example Makowsky v. John Doe, 2007 BCSC 1231 (aff'd 2008 BCCA 112). To a very large extent the current application to the HRTO alleging discrimination simply reiterates these two bias allegations, and seeks a different ruling.

63As well, the applicant claims that Vice-chair Muir made the wrong decision by dismissing his applications, and seeks a different finding by asserting that the adverse ruling constitutes discrimination. It is notable that the request for remedy in this new application repeats the request for remedy made in the earlier ones — the applicant seeks reimbursement for his loss of income and associated benefits, due to the failure to continue him as a Justice of the Peace, as well as reimbursement of legal costs; indeed, the remedial portion of the application appears to have been literally cut and pasted from the applications already decided.

64Issue estoppel is a branch of res judicata, which precludes the relitigation of issues previously decided in another proceeding. For issue estoppel to be invoked, the issue must be the same as the one decided in the prior decision, the decision must have been final, and the parties to both proceedings must be the same.

65The doctrine does not perhaps apply literally in the present case, as in the present application the applicant is seeking relief as against the HRTO and Vice-chair Muir, as opposed to the respondents in the earlier applications. However, as noted in Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63, the debate over whether Canadian courts can apply the doctrine of issue estoppel in the absence of the requirement of mutuality of parties has been superceded to a large extent by courts' reliance on the doctrine of abuse of process, in order to deal with relitigation problems that do not strictly meet the issue estoppel test.

66In City of Toronto, the Supreme Court refers with approval to the following quote about the doctrine of abuse of process, from Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 51 O.R. (3d) 481 at § 55—56 (C.A.):

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel...

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined...

67Adopting this approach in its decision in City of Toronto, the Supreme Court applied the doctrine of abuse of process to quash the decision of an arbitrator which disputed the factual findings made in an earlier criminal proceeding involving the grievor before him. In so doing, the Court looked at the issues of collateral attack, issue estoppel, and abuse of process, concluding that all three doctrines are designed to discourage relitigation [at § 37], "where allowing the litigation to proceed would... violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice".

68The present application is a perfect demonstration of the concerns which underlie the Court's statements in City of Toronto. The applicant is making a bald attempt to relitigate his unsuccessful earlier applications by re-characterizing them as further alleged breaches of the Code, relying upon a completely un-particularized claim of discrimination which is nothing more than a hypothesis that any decision made which does not support his claims must have been made because of his racial and ethnic origins. Permitting such claims to proceed would clearly violate the principles of adjudicative economy, consistency, finality and integrity, which are central principles of the administrative justice system, as will be discussed below.

Reasonable Apprehension of Bias

69I have stated that, in the normal course, an application such as the one filed by Mr. Jogendra would be dismissed on the basis of adjudicative immunity, or as an abuse of process. However, in the present case, the applicant has alleged that the HRTO is prevented from proceeding with any aspect of his application, or indeed from processing the application according to the Rules and procedures of the Tribunal, because the application is made against the HRTO and one of its adjudicators.

70While the applicant's demand has not been framed clearly as a problem of reasonable apprehension of bias, but rather on the basis of the parallel proceeding under the POA, the Court has stated that the HRTO should decide the issue of bias preliminary to any consideration by the Court of the request for the application of a disinterested person under the POA.

71In order to frame a discussion of the allegation of bias in the present case, it is necessary to set out some of the key principles established by the caselaw. First, there is a strong presumption of judicial impartiality and integrity, and this has been extended to administrative tribunals and adjudicators: R. v. Brown (2003), 64 O.R. (3d) 161, 2003 CanLII 52142 (C.A.) at § 37—39; Chainauskas Estate v. Reed, (2009), 251 O.A.C. 209, 2009 ONCA 572 at § 12.

72Numerous decisions have noted that the rule against bias is intended to uphold public confidence in the fairness of administrative agencies and their decision-making procedures, and thus requires both independence and impartiality. Both requirements relate to the Latin maxim nemo debet esse judex in propria sua causa — no one should be a judge in their own cause. But the two principles, although related, are not identical. As the Supreme Court said in Valente v. The Queen, [1985] 2 S.C.R. 673 at 685, 1985 CanLII 25:

Although there is obviously a close relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements. Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word "impartial"... connotes absence of bias, actual or perceived. The word "independent" in s. 11(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government...

73In Committee for Justice & Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at 394, 1976 CanLII 2, the Supreme Court established the test for finding bias:

... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information... that test is "what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude". Would he think it is more likely than not that the [board member], whether consciously or unconsciously, would not decide fairly?

74Because the person whose perception is being tested must be reasonable, that reasonable observer is presumed to have some knowledge and understanding of the judicial (or administrative) process and the nature of decision-making (R. v. S. (R.D.), [1997] 3 S.C.R. 484, 1997 CanLII 324 at § 31), not to have a "very sensitive... conscience" (R. v. S. (R.D.) at § 37), and be informed of and consider the context surrounding the impugned behaviour (Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, 2003 SCC 45 at § 77; Marchand (Litigation Guardian of) v. Public General Hospital Society of Chatham (2000), 51 O.R. (3d) 97, 2000 CanLII 16946).

75Finally, it is clear that the rule against bias must be considered within the particular context of the decision-making process which is being challenged. In Committee for Justice and Liberty v. National Energy Board, supra, the Supreme Court explicitly allowed for a flexible application of the "reasonable apprehension of bias" test to take into account different administrative contexts [at 395]:

This is the proper approach which, of course, must be adjusted to the facts of the case. The question of bias in a member of a court of justice cannot be examined in the same light as that in a member of an administrative tribunal entrusted by statute with an administrative discretion exercised in the light of its experience and of that of its technical advisers.

The basic principle is of course the same, namely that natural justice be rendered. But its application must take into consideration the special circumstances of the tribunal.

76Because bias refers to the state of mind of a decision-maker, allegations of a reasonable apprehension of bias have typically been brought against individual adjudicators. Cases where such an allegation has been made against all members of a court or tribunal are thus extremely rare, and, where they exist, they also run into a concern about the need for the statutory mandate of a tribunal to be met (or in the case of a court, its obligation to exercise its inherent jurisdiction).

77In the early case of Judges v. Attorney General of Saskatchewan, 1937 CanLII 368 (UK JCPC), [1937] 2 D.L.R. 209 (P.C.), a constitutional question was referred to the Court by the Saskatchewan government as to whether or not justices were subject to the payment of income tax on their judicial salaries. The Saskatchewan Court of Appeal found that they were, but also dealt with the concern about the Court hearing a case in which all of its members had an actual interest, ruling that the Court must proceed to decide the case based on the doctrine of necessity. This approach was upheld by the Privy Council:

The reference in question placed the Court in an embarrassing position, all its members being from the nature of the case personally interested in the point in controversy. They took the view (quite rightly in their Lordships' opinion) that they were bound to act ex necessitate.

78The Judges case was considered and applied in Caccamo v. Canada (Minister of Manpower and Immigration), 1977 CanLII 3079 (FCA), [1978] 1 F.C. 366 (C.A.), in which a claim of reasonable apprehension of bias was brought after the Director of Information for the Department of Manpower and Immigration made certain comments in the press about the alleged mafia connections of the applicant. The Federal Court of Appeal refused to grant a writ of prohibition preventing any person directly or indirectly connected with the Department from hearing the application, relying upon the doctrine of necessity, and making the following statements:

... [E]ven where actual bias in the sense of a monetary interest in the subject of the litigation is involved, if all eligible adjudicating officers are subject to the same potential disqualification, the law must be carried out notwithstanding that potential disqualification. See The Judges v. Attorney-General for Saskatchewan... [B]ecause it is necessary to carry out the legal requirements of the statute, a Special Inquiry Officer is not disqualified from acting by reason only of the circumstances established in this case.

79As noted above, applications alleging that a decision-maker may not proceed due to a reasonable apprehension of bias are heard and determined by that decision-maker: see § 62 above, and also Flamborough (Township) v. Canada (National Energy Board), [1984] F.C.J. No. 526 (QL), 55 N.R. 95 (C.A.). The Court in the latter case was hearing a judicial review challenging not only the dismissal by the National Energy Board of an allegation of bias, but also the fact that the member who was alleged to be biased participated in the adjudication of the motion. The Court explained forcefully why proceeding in that fashion is important to the administration of justice:

... [T]he proposition that a member of a tribunal against whom an allegation of an apprehension of bias has been made cannot, himself, dispose of or participate in disposing of that allegation is utterly fatuous. The practical effect, if that were the law, would be the paralysis of tribunals, and trial courts, at the whim of anyone willing to allege bias. The availability of judicial review and appeal ensures that such charges will, ultimately, be dealt with by a disinterested judiciary.

80How then do these principles concerning allegations of a reasonable apprehension of bias apply to the present case? While the applicant chose to make only limited submissions to the HRTO on the issue of bias, the essence of his concern is clear from his references to the Latin maxim quoted above — nemo debet esse judex in propria sua causa. The application filed by Mr. Jogendra is brought against the HRTO and one of its adjudicators. He now claims that for the Tribunal to hear such a case would be a breach of the principle that no one should be a judge in one's own cause.

81However, in the present case, the question is not so much whether or not the HRTO can or should hear a case brought against itself, as it is whether or not it can apply its rules, procedures and well-established jurisprudence to determine whether or not a case is properly before it. The context for the decision before me, as an adjudicator of the Tribunal, is described above. In a case such as Mr. Jogendra's, I am not called upon to hear evidence, find facts, or make legal determinations as to whether or not particular conduct constitutes discrimination within the meaning of the Code. Instead, I am faced with an application which, according to clear law concerning judicial and adjudicative immunity, cannot be brought, and which also undeniably constitutes an abuse of process. I have been assigned to consider this application without any previous involvement in the applications which form the basis of the application, I have had no contact with the Vice-chair named as respondent concerning the present case (or indeed the earlier ones), and my role has been scrupulously separated from the representation of the HRTO and individual Vice-chair as respondents. In these circumstances, does the allegation of bias by the applicant prevent the Tribunal from applying its Rules, and well-established caselaw, to dismiss this application at a preliminary stage?

82This is the specific context for the present decision, and, as the review of the law on bias set out above confirms, the assessment of whether or not a reasonable observer would apprehend bias in a particular case must be undertaken with careful consideration of the context for the particular administrative decision which is challenged.

83The more general context includes the following considerations. The HRTO processes more than 3,500 applications a year, so the importance of maintaining efficiency and finality, along with fairness and the rule of law, is clear. For this reason, the HRTO has Rules that permit the efficient screening of applications that do not fall within its jurisdiction (r. 13), or that are entirely without merit, as the allegations made would not constitute a breach of the Code, even if proven (r. 19A). The Tribunal has also defined a narrow category of grounds on which reconsideration would be appropriate (r. 26). Its decisions are protected by a privative clause (s. 45.8).

84These provisions all seek to ensure that the HRTO's limited resources can be directed to the adjudication of cases which raise real issues under the Code — in a way which provides procedural fairness, a high standard of decision-making, and finality for all parties — and that these resources are not exhausted through the processing of frivolous and vexatious complaints, or by endless relitigation of matters already decided. The facts in the present case — and in other similar applications made to the Tribunal, including the companion case of Traversy — demonstrate that, unfortunately, there is a real risk that an applicant who is unhappy with the results of an application will be able to interfere greatly with the administration of justice by claiming that the unsuccessful result was caused by discrimination on the part of the HRTO or one of its adjudicators.

85There may also be a risk that an applicant may be able to proceed with a case which would otherwise constitute an abuse of process, and/or is outside the jurisdiction of the Code, by seeking recourse to s. 16 of the POA, which is an ad hoc decision-making process that does not form part of the dispute resolution system that was created by the Legislature for the litigation of human rights applications in Ontario. The process under the POA may also present significant challenges to the judicial system, should applications such as the present one become more common, and is less than ideal for individual applicants who may not be able to easily access the courts in order to commence the legal proceedings required in order to obtain the appointment of a "disinterested person".

86In addition to careful consideration of the context of the present decision, other important principles are relevant. First, it is clearly not the case that, immediately upon the making of an allegation of bias, an administrative tribunal or judge is prevented from taking any further action in the matter. Most significantly, an adjudicator faced with a challenge is of course required to decide the matter of bias itself, an issue in which the challenged adjudicator certainly could be presumed to have an interest. As well, the doctrine of necessity means that, in some cases, courts and tribunals will be required to proceed to hear a case, even on its merits, in order to meet the legal obligation to decide, arising either from the inherent jurisdiction of the courts, or the statutory tribunal of specialized administrative tribunals. While the existence of the POA may provide a unique alternative process, in Ontario, for the rare cases in which there is a true impediment to acting (as discussed below), the cases on necessity make it clear that, in some cases, an adjudicator may proceed even in the face of actual bias.

87Applying these well-established principles of administrative law to the present case, I am satisfied that the HRTO may, and indeed must, apply its Rules and well-established caselaw to determine whether or not an application is properly before it, even where that case alleges a breach of the Code by the Tribunal as organization, or by an individual Member or Vice-chair as individual respondent. I conclude that, so long as the kind of precautions taken in the present case (described in § 4 and 81 above) are observed, a Tribunal adjudicator who is not named as an individual respondent may perform this function without giving rise to a reasonable apprehension of bias.

88If, however, the case is not dismissible for want of jurisdiction, through the application of the doctrine of adjudicative immunity, or as an abuse of process, then the question before the HRTO on the issue of reasonable apprehension of bias becomes a very different one. As discussed above, those cases are likely to be rare in respect of an adjudicative tribunal like the HRTO, given the narrow range of services provided by the HRTO which may fall within the definition of "services" in the Code, and the application of the doctrine of judicial immunity to its adjudicative functions.

89However, some non-adjudicative services provided by administrative agencies, boards and tribunals like the HRTO may be governed by the Code, and the HRTO is also covered by the Code in its capacity as an employer. In such a case — where there would be no plain and obvious jurisdictional or other impediment to the processing of the application, and the material facts alleged would, if proven, constitute a breach of the Code — the Tribunal might face the prospect of having to hear and decide the merits of a case alleging discriminatory conduct by itself and/or one of its staff. The decision as to whether proceeding in such a case would create a reasonable apprehension of bias might properly be quite different than in the present case. The HRTO would also have to examine carefully whether such circumstances fell within the narrow range of cases where it could properly be concluded that its members had an interest in the outcome sufficient to disqualify all of them from hearing the case.

90It is neither necessary, nor appropriate, in the present case, to consider what specific facts might lead to such a conclusion in a hypothetical case such as the one I have described, as this is not such a case. In the application before me, the law is clear and unequivocal: the Tribunal has no jurisdiction due to the doctrine of adjudicative immunity, and the application is an abuse of process. In this case, I conclude that "an informed person, viewing the matter realistically and practically — and having thought the matter through" would accept that I am able to apply the Tribunal's criteria for dismissal fairly, and that there is therefore no reasonable apprehension of bias preventing me from proceeding. This approach clearly strikes the appropriate balance between the HRTO's obligation to provide procedural fairness, the importance of it fulfilling its statutory mandate under the Code, and the protection of the integrity of the administrative justice system.

Appointment of a Disinterested Person Pursuant to the Public Officers Act

91While consideration of the POA is not strictly an issue before me, its existence forms part of the applicant's claim that the HRTO cannot act in the present case. However, the limited jurisprudence decided under it supports the conclusion I have reached concerning bias in the present case, so I will review the provision in issue and the few cases which have interpreted it.

92Section 16 of the Public Officers Act provides as follows:

16. Where by any general or special Act any person or the occupant for the time being of any office is empowered to do or perform any act, matter or thing and such person or the occupant for the time being of any office is disqualified by interest from acting and no other person is by law empowered to do or perform such act, matter or thing, then he or she or any interested person may apply, upon summary motion, to a judge of the Superior Court of Justice, who may appoint some disinterested person to do or perform the act, matter or thing in question.

93These provisions have rarely been interpreted, and even more rarely utilized to facilitate the appointment of a disinterested person within Ontario's administrative justice system. The leading case (and the first application of s. 16 of the POA) is Service Employees International Union, Local 204 v. Johnson, 1997 CanLII 12280 (Ont. S.C.). The Court was asked to appoint a disinterested person pursuant to s. 16 of the POA, following a decision of the Ontario Labour Relations Board (the "OLRB") that found there was a reasonable apprehension of bias affecting all of the vice-chairs of the Board, and that as a result the OLRB was unable to proceed with the application before it. That application was filed further to an earlier complaint brought by the Service Employees International Union (the "SEIU") against the government as employer, arising from a change in the contractor providing cleaning services at the legislative buildings at Queen's Park. While that application was before the OLRB, a cabinet minister who was Chair of Management Board of Cabinet made certain comments to the media which the SEIU alleged were contrary to the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (the "LRA") as they were intended to intimidate the vice-chairs of the Board. Some of the facts underlying the allegation of intimidation were that, in the months immediately prior to the impugned statements, the government had terminated, failed to reappoint, and/or appointed without fixed terms, various vice-chairs of the OLRB, along with the former Chair.

94At the outset of the hearing on the intimidation application, the vice-chair hearing the case felt compelled to disclose to the parties that certain information concerning the appointment and reappointment of vice-chairs by the government of the day had been shared and discussed at meetings of the OLRB's adjudicators, and that some of that information contradicted some of facts as alleged by the parties. After hearing submissions on the issue, the vice-chair ruled that, because this information was relevant to the issues in dispute, all vice-chairs had knowledge of that information, and that they all had an interest in the characterization of that information, there was a reasonable apprehension of bias affecting the entire OLRB. In the circumstances, the vice-chair declined to proceed, noting that the union had recourse to another forum, as it could apply to the Court for appointment of a "disinterested person".

95When the union applied to the Court under s. 16 of the POA, the Court stated that the test on an application under this provision is as follows:

1. Was Vice-Chair Whitaker empowered, by any general or special Act, to hear and decide the matter brought before him?

2. If Vice-Chair Whitaker was empowered to decide the matter, was he disqualified by interest?

3. If Vice-Chair Whitaker was disqualified by interest, is there another person who is qualified by law to hear and decide the matter?

96The Court's consideration of s. 16 of the POA in SEIU v. Johnson is useful for any consideration of the application of the POA to an allegation of reasonable apprehension of bias made against an administrative tribunal in Ontario. First, the Court considered the meaning of "public officer", which is not defined in the Act, and found that the statutory provisions in the LRA which provide for appointment by the Lieutenant Governor in Council of members of the OLRB, to exercise certain powers and duties, meant that "Vice-Chair Whitaker, his fellow vice-chairs, the chair and the alternate chair are all empowered by a special Act to adjudicate certain labour relations matters".

97The Court then considered the argument of the respondent that the Vice-chair did not have the authority to hear the matter before him, on the basis that the OLRB had no jurisdiction to consider the allegations of contempt made against Johnson. After reviewing in some detail the scope of the statutory provision setting out the OLRB's power to state a case for contempt, and the arguments made to limit its scope, the Court concluded that the Legislature must have meant to include the power in issue within the OLRB's jurisdiction. The Court also considered the strength of the case in determining whether or not the Vice-chair was empowered to hear and decide the matter, and made the following statement:

Section 16 of the Public Officers Act does not explicitly deal with whether the strength of the applicant's case should be assessed when deciding whether to appoint a disinterested adjudicator. A discretion to appoint is reposed in the judge and perhaps some showing that the O.L.R.B. applications are not frivolous or vexatious should be demonstrated. In this case, the O.L.R.B. accepted that the union's applications (under the Labour Relations Act, 1995) were worthy of adjudication and that should suffice.

98As a result, the Court concluded that the first part of the test on the application, that the public officer in issue is empowered to hear and decide the matter before him, had been met.

99As the second and third parts of the test are not as significant for the determination of the present case, I will not review the Court's reasons in that regard in any detail. In SEIU v. Johnson, the interest alleged was a very different one: the OLRB vice-chairs possessed personal information concerning a key dispute in the application, and one or both of the parties would have to contradict that personal knowledge in order to advance their cases. In considering whether or not that meant that Vice-chair Whitaker was disqualified by interest from deciding the case, the Court made the following significant statements [at § 51—54]:

... The rule that a party with an interest in the proceeding should not adjudicate it stems from the legal maxim nemo judex in sua causa debet esse ("no one shall be judge in their own cause"). It is well-established that the rule encompasses more than mere pecuniary interest in the outcome of a proceeding...

... In this case, the adjudicator had personal knowledge of some of the facts in dispute in the application before him. The issue, therefore, is whether that knowledge raises a reasonable apprehension of bias.

The classic test for reasonable apprehension of bias was set out by de Grandpré J. in his dissenting judgment in Committee for Justice & Liberty v. Canada (National Energy Board), 1976 CanLII 2 (S.C.C.), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716, which was adopted by Lamer C.J.C. in Canadian Pacific Ltd. v. Matsqui Indian Band, 1995 CanLII 145 (S.C.C.), [1995] 1 S.C.R. 3, 122 D.L.R. (4th) 129. In the National Energy Board case, de Grandpré J. held (at p. 394):

... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is "what would an informed person, viewing the matter realistically and practically — and having thought the matter through — conclude". Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would decide fairly.

In this instance, Vice-Chair Whitaker had personal knowledge of facts in dispute between the parties. Further, his personal knowledge contradicted the facts pleaded by either one or both of the parties. It seems clear that a reasonable person would conclude that Vice-Chair Whitaker would not be able to fairly adjudicate the matter, as one or both parties may be asking him to make findings of fact that directly contradict his personal knowledge.

100Finally, the Court went on to consider whether there was another person qualified by law to hear and decide the case; in the circumstances of the Johnson case, the question was really whether all of the adjudicators at the OLRB were disqualified by the same interest. The Court disposed of this issue quickly, noting that Vice-chair Whitaker had already found in his decision on bias that all other OLRB Vice-chairs, along with the Chair and Alternate Chair, possessed the same personal knowledge concerning the facts in dispute. There was some discussion of whether or not there was any other entity or individual to which the union might take its complaint about the actions of Johnson, but ultimately the Court concluded that, with all of the adjudicators at the OLRB disqualified by interest, the appointment of a "disinterested person" pursuant to s. 16 of the POA was appropriate. The Court indicated that it would entertain submissions from the parties as to the identify [sic] of that person, should the parties be unable to agree.

101The only other case to consider s. 16 of the POA since the decision in SEIU v. Johnson is Boucher v. Public Accountants Council for the Province of Ontario, [2000] O.J. No. 3126 (QL) (Sup.Ct.). In that case, the applicants sought to replace all of the members of the Public Accountants Council, a body which controlled the licensing regime for public accounting in Ontario, on the basis that the entire council lacked independence and impartiality. The Court ruled that the remedy sought was outside the jurisdiction of the Court pursuant to the POA, and was instead a challenge to the entire regulatory regime, and thus a constitutional challenge. The decision does not contain, therefore, a discussion of the requirements for an order under s. 16 of the POA, other than a review of the Johnson case, and the general statement that:

Section 16 of the POA is designed to provide a remedy in situations where legally empowered persons are disqualified. Rather than deny someone the opportunity to have a matter acted on at all, the legislature has provided a mechanism whereby the Court may confer temporary jurisdiction on someone else.

102In the present case, the applicant has filed a motion before the Superior Court, seeking the appointment of a "disinterested person" pursuant to s. 16 of the POA. The decision of the Court indicates that the HRTO should make a decision on the existence of a reasonable apprehension of bias, before it is considered judicially; this is the approach that was taken in SEIU v. Johnson, in which the OLRB ruled first on the whether or not there was an interest that disqualified the Vice-chair, and other adjudicators at the OLRB, before declining to proceed.

103But, importantly, the OLRB also determined that the case in issue was properly before it, before turning to the issue of bias. This fact is emphasized in the Court's decision in Johnson. As noted above, the first question in the test for the application of the section established by the Court in Johnson is whether the public officer whose interest has been questioned is "empowered, by any general or special Act, to hear and decide the matter brought before him". In that case, the Court spends considerable time analyzing the respondent's challenge to the OLRB's jurisdiction over the particular form of contempt alleged by the SEIU, in order to determine whether the first part of the test has been met. Only after concluding that the Vice-chair did have authority to make the order sought, did the Court find that he was "empowered" and proceed to consider the issue of disqualification by interest. The Court further suggested that, in exercising the discretion reposed in the Court as to whether or not to appoint a disinterested person, some consideration should be given to whether or not the application being advanced was "frivolous or vexatious", and deferred to the OLRB's conclusion that the matters were worthy of adjudication in deciding to proceed. Thus, it is clear from the language in s. 16 of the POA, and the discussion of its requirements in SEIU v. Johnson, that consideration of whether or not the case is properly before the challenged decision-maker is a prerequisite for the consideration of interest and disqualification.

104This analysis by the Court thus provides strong support for my conclusion above that the Tribunal can and should determine whether or not an application such as the present one is properly before it, on the basis of well-established case law, without there being a reasonable apprehension of bias in making that determination.

DISPOSITION

105I have concluded that the HRTO can, and should, decide whether or not an application is properly before it, even where the application names the Tribunal and/or one of its adjudicators as respondent(s). I am satisfied that such a decision can be made without giving rise to a reasonable apprehension of bias.

106For the reasons set out in § 45 to 68 above, I conclude that this application cannot be brought against the respondent Muir or the HRTO, because of the doctrine of judicial immunity. As well, the application clearly constitutes an abuse of process.

107The application is dismissed.