Norman Traversy v. Human Rights Tribunal of Ontario and Sherry Liang, 2011 HRTO 323

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Norman Traversy Applicant

-and-

Human Rights Tribunal of Ontario and Sherry Liang Respondents

DECISION

Adjudicator: Pamela Chapman Date: February 15, 2011 Citation: 2011 HRTO 323 Indexed as: Traversy v. Human Rights Tribunal of Ontario

WRITTEN SUBMISSIONS

Norman Traversy, Applicant ) John Villella, Representative Human Rights Tribunal of Ontario ) Anita Lyon, Counsel and Sherry Liang, Respondents )

1This is an Application filed on May 28, 2010, under section 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 disability, in the provision of goods, services or facilities by the respondent. The provision of services alleged to be discriminatory are those provided by the Human Rights Tribunal of Ontario (the "HRTO") and Sherry Liang, a Vice-chair of the HRTO, in the adjudication of an earlier and separate Application filed by the applicant in Tribunal file 2008-00416-I. The Application complains about the rulings and conduct of Vice-chair Liang, who was assigned to adjudicate the earlier Application, during the hearing.

3This is the second Application to the HRTO to allege a breach of the Code by the HRTO and/or one of its adjudicators in which the issue has arisen as to whether 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.

4Several such Applications have now been filed, and this Decision is released together with a companion case, Jogendra v. Human Rights Tribunal of Ontario, 2011 HRTO 322. In the Decision in Jogendra, I have explored in considerable detail 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"). In the present decision I will not duplicate that discussion, but will instead summarize my conclusions in Jogendra, and apply them to the facts of the Application filed by Mr. Traversy.

5The 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 Application filed by Mr. Traversy, or indeed the present Application, prior to its assignment to me on November 1, 2010. I have had no contact with the Vice-chair named as a respondent in this matter concerning the present Application (or the earlier one), and have had no involvement in the representation of the HRTO or Vice-chair Liang as respondents.

The Earlier Applications

6As noted above, the applicant filed an earlier Application to the HRTO, which is the subject of the present Application, on September 16, 2008, under section 34 of Part IV of the Code. The earlier Application was brought against the Mississauga Professional Firefighters' Association, the union which represented Mr. Traversy in his employment with his former employer, the City of Mississauga, and several individual representatives of the union.

7The Tribunal's Decision dated July 8, 2009, 2009 HRTO 996, describes the earlier Application as follows:

The applicant is a firefighter employed with the City of Mississauga (the City). He alleges that the respondents discriminated against him as a member of the Mississauga Professional Firefighters' Association (the Association), on the basis of a disability. The allegations of discrimination are centred on the Association's actions as the representative of the applicant in his employment relations with the City of Mississauga.

8A hearing was convened on May 29, 2009, before Vice-chair Liang. The applicant attended, and was represented at the hearing by two individuals. The Tribunal's Decision records the basis on which the applicant put in his case: he was permitted to adopt the narrative in his Application and the witness statement filed with it as his evidence, and to supplement that evidence with additional oral testimony. Documents were also filed without the need for formal proof. At the conclusion of the applicant's case, the respondents asked the Tribunal to dismiss the earlier Application on the basis that it failed to establish a prima facie case of discrimination under the Code.

9There is no need to record at any length the Tribunal's consideration of the parties' respective submissions on the respondents' Request; they are clear in the Decision of July 8, 2009, 2009 HRTO 996. In that Decision, the Tribunal records the facts underlying the earlier Application, and reviews in some detail the allegations made by the applicant and the evidence called in support.

10The HRTO's conclusions are set out in paragraphs 30 to 50 of the Decision. The key determinations are as follows:

Assuming that the Code also applies to this aspect of a union's relationship with the employees it represents, a claim that the union violates the Code must be based on an assertion of differential treatment, and not simply a failure to act. The failure or refusal to take forward a human rights issue, such as accommodation of a disability in the workplace, is not, in and of itself, a breach of the Code. There may be many reasons that have no discriminatory overtones why a union might choose not to pursue a human rights claim on behalf of an employee: see Baylet v. Universal Workers Union, 2009 HRTO 700. There must be a claim, and a factual foundation for the claim, that the failure to act was based on discriminatory factors.

In the case before me, the evidence of the applicant does not establish a prima facie case of discrimination under the Code. I am also satisfied that this is not a case where it is unfair to arrive at this assessment in the absence of any evidence from the respondents. The evidence does not support any claim that the Association treated the applicant unequally because of his disability. There is considerable evidence about the actions taken to respond to the applicant's employment concerns, including giving advice, taking action on the grievance over the Acting Captain posting, representing the applicant in an appeal of a WSIB claim, and representing the applicant in his ongoing termination grievance. The applicant's claim is essentially that by failing to do more, the Association discriminated against him. But there is no factual basis for the claim that the failure to do more was based on discriminatory considerations.

In conclusion, I am satisfied that the evidence offered by the applicant is not complete and sufficient to justify a finding in his favour in the absence of an answer from the Association. It does not establish that the Association treated the applicant unequally as his representative in the workplace because of his disability. It does not establish that the Association was responsible for preventing the appropriate accommodation of the applicant in his workplace.

Essentially, the applicant asserts that the Association could have done more. Whether or not that is the case, the evidence does not support the conclusion that any failure to "do more" was discriminatory. There is no evidence that any alleged deficiency was different from the Association's advocacy on behalf of other members, with or without a disability.

Finally, my conclusions apply with equal force to the individual respondents. There is no basis for a finding that any of them acted in a discriminatory manner towards the applicant and for some of them, there is no evidence whatsoever about their involvement.

In the result, the Application is dismissed.

11Following the release of the Decision, on September 21, 2009, the applicant filed a Request for Reconsideration under section 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.

12Vice-chair Liang decided the Request for Reconsideration on the basis of written submissions, as provided for by Rule 26 of the HRTO's Rules. The Reconsideration Decision dated October 7, 2009, 2009 HRTO 1160, dismissed the Request for Reconsideration.

13The Reconsideration Decision reviews the foundation for the applicant's Request that the HRTO reconsider its Decision, including his objection to certain procedural rulings made at the hearing, specifically the decision to decide the case without hearing from the respondent, and also the applicant's claim that new evidence ought to reverse the earlier finding. The HRTO finds that any evidence described would not alter its assessment of whether or not a prima facie case of discrimination could be made out, and notes that the new information in any event related to events following the hearing. The Reconsideration Decision includes the following passages which have some relevance to the present Application:

Rule 26 reads, in part, as follows:

26.5 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 and orders.

The Tribunal's Practice Direction on Reconsideration begins with the following statements:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

The applicant takes objection to certain comments or conduct, on the part of the respondents that he alleges occurred during the hearing. No objection was taken to the comments or conduct, if indeed they occurred, at the hearing. A Request for Reconsideration is not a means to raise objections about a hearing process after a party receives a decision with which they disagree. To the extent the applicant raises facts or evidence he believes may have had an impact on the outcome of the hearing, it cannot be said that they were not reasonably known to him at the time of the hearing.

The applicant expresses disagreement with a specific finding in the Decision, relating to a comment he alleges was made by one of the individual respondents. An applicant is entitled to disagree with findings made in a Tribunal decision, but this is not a basis for granting a Request for Reconsideration.

In sum, I am not satisfied that the applicant has shown the existence of any of the criteria described in Rule 26 for granting a Request for Reconsideration. The Request is dismissed.

14No application for judicial review was filed on the earlier Application following release of the Reconsideration Decision.

15On May 28, 2010, the present Application was filed.

Present Application

16As noted above, the applicant now complains that Vice-chair Liang has discriminated against him, and reprised against him, on the basis of disability, in the provision of services. The description of the claim is quite brief. The Application first contains a general statement that Traversy was

[...] subjected to discrimination, humiliation, and was also treated unjustly and unfairly by the unwanted actions of Vice Chair Sherry Liang and the Human Rights Tribunal of Ontario. It happened on Friday May 29, 2009 during a Human Rights Tribunal of Ontario hearing.

17The applicant goes on to say that

(...) also, other females, including my wife (observers and witnesses) were subjected to intimidation, discrimination, etc. during that proceeding...and Vice Chair Liang observed such actions and did nothing to correct them.

18Later in the Application, the applicant complains about one particular action by Vice-chair Liang during the hearing: he alleges that she provided a copy of another Application filed by him, in Tribunal file 2009-02447-I, to counsel for the respondents. He asserts that this action by Vice-chair Liang submitted him, as a person with a disability, to "differential treatment, humiliation, discriminatory treatment, etc.". The applicant also makes an allegation that, sometime later, the respondents' counsel on the later Application, 2009-02447-I, provided a copy of a confidential memorandum of settlement to counsel for the respondents on the Application heard by Vice-chair Liang, and also added the Association as a respondent in that file. However, neither counsel in that later Application, nor the Association, are named as respondents in the present Application, so this allegation can have no relevance to the present Application.

19On July 12, 2010, the Registrar of the HRTO wrote to the applicant, and to the respondents, acknowledging the filing of the present 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".

20As well, the Registrar's letter of July 12, 2010 directed the parties to the following issues:

Even if the parties agree that there is no impediment to the HRTO adjudicating this Application it appears the Application may be outside the Tribunal's jurisdiction because:

• The respondents are adjudicators. The HRTO has stated that it has no jurisdiction to hear application against courts and tribunals based on the execution of adjudicative duties or decision-making because of the doctrine of judicial immunity...

• A review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent(s).

• The applicant alleges discrimination based on "reprisal or threat of reprisal" but has failed to explain how the respondents' behaviour was related to any of the following: claiming or enforcing a right under the Code; instituting or participating in proceedings under the Code; or, refusing to infringe the right of another person under the Code [s.8]...

• The applicant appears to be challenging the decision or outcome of an adjudicative process. The HRTO 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, including the Courts...

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

If the applicant does not file written submissions on both issues by the required time the HRTO will make its decision based only on the information in the Application or may consider the failure to respond as an abandonment of the Application and dismiss the Application for that reason.

21The applicant did not file submissions in response by August 16, 2010, the deadline set by the Registrar's letter. However, on September 8, 2010, a document was faxed to the HRTO by an individual who had not been identified as the representative of the applicant, but appeared to be writing concerning the issues set out above, and concerning the present Application. Having established that it was the applicant's intent to have this individual represent him, the Tribunal extended the time for the filing of submissions and accepted the document dated September 8, 2010, as the applicant's submissions on these matters. Submissions were also filed by the respondents.

22None of the parties in this matter have taken the position that the HRTO should not proceed with the present Application due to a reasonable apprehension of bias. All of the submissions received address the jurisdictional issues raised in the Registrar's letter, and proceed on the basis that the HRTO both can and should decide the issues. For example, the letter from the applicant's representative states:

The HRTO Tribunal does have the jurisdiction to deal with this matter, and it must do so for the public's interest. It would be procedurally unfair and a denial of natural justice if the Applicant's Complaint was not addressed by the HRTO. There is no other appropriate forum to deal with this matter, nor to be deferred to.

Adjudicative immunity and abuse of process as preliminary issues

23As 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.

24In the Registrar's letter dated July 12, 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 and the definition of "services", and also because the Application did not appear to make allegations which, if proven, would constitute discrimination (or reprisal) within the meaning of the Code.

25The jurisdictional issue arising from the principle of adjudicative immunity is explained clearly in the letter:

(...) [I]t appears the Application may be outside the Tribunal's jurisdiction because:

• The respondents are adjudicators. The HRTO has stated that it has no jurisdiction to hear application against courts and tribunals based on the execution of adjudicative duties or decision-making because of the doctrine of judicial immunity...

26The 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.

27The 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, 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. (...)

28A 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.

29As reviewed 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 Vice-chair's actions in the course of conducting the hearing. While there are no clear allegations as to how the process she adopted would constitute a breach of the Code, the applicant claims that her actions during the hearing amounted to differential treatment on the basis of disability.

30However, the applicant suggests that the actions which are complained of are not adjudicative in nature. First, he submits that the decision by the Vice-chair to provide notice to the respondents of the filing of another Application by the applicant occurred, it is now alleged, prior to the start of the hearing. Contrary to this claim, the Application itself states clearly that the conduct complained of happened, to use the applicant's own words, "during a Human Rights Tribunal of Ontario hearing"; the claim that these actions occurred "prior to the commencement of the hearing" came only in the submissions filed by the applicant's representative. Whether or not the adjudicator had formally commenced the hearing, in the sense that she had begun to hear evidence (or by whatever step the applicant measures the start), the Vice-chair's actions clearly occurred in the hearing room, in which she was present as adjudicator, even if they occurred at or near the start of the proceedings.

31In any event, the decision to notify the parties of another related application, and to provide copies of pleadings, falls clearly within the HRTO's jurisdiction to make procedural determinations, and is therefore adjudicative in nature. This particular decision is no different in nature than any of the numerous procedural decisions that adjudicators are required to make during the course of a proceeding, including those dealing with the disclosure of documents, the order of proceeding, and evidentiary rulings. The HRTO and its adjudicators are required to engage in adjudicative functions both inside and outside the hearing room; what is relevant is not the location but rather the nature of the activity.

32The other actions by the Vice-chair which are complained of are identified more clearly (although without detail or specificity) in the submissions of September 8, 2010. It is admitted that this alleged conduct took place after the hearing commenced. The applicant alleges that Vice-chair Liang "allowed the responding parties to intimidate, mock and coerce the Applicant, his witnesses and his representative during the proceedings".

33While no details are provided either of the conduct of the responding parties which is complained of, or how the Vice-chair is alleged to have facilitated or permitted this conduct, it is clear that the applicant's complaint relates to actions which occurred during the hearing. To whatever extent the Vice-chair could be said to have "allowed" such alleged conduct to have occurred, it is clear that this could only have been through any procedural rulings she made and the way in which she conducted the hearing. These activities are clearly adjudicative in nature.

34The applicant relies on several cases of the HRTO which have acknowledged that some actions of an adjudicative body might be subject to the Code; in particular his representative cites the decision in Lindberg, supra. While there is no doubt that administrative tribunals which exercise largely adjudicative functions may also engage in the provision of non-adjudicative services, none of the allegations made here relate to any such functions. The Application relates entirely to what happened during the course of the adjudicator's conduct of the hearing. The complaints made by the applicant relate specifically to how the adjudicator conducted the hearing; there is no complaint made, for example, about any specific statement or action by the Vice-chair which did not relate to her adjudicative functions.

35For these reasons, there 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.

36In 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 the Tribunal's proceedings were discriminatory, which constitutes a collateral attack, and is prohibited by the doctrine of issue estoppel.

37First, the Application raises various issues that should properly have been the subject of a different proceeding. While the applicant is now expressing concern about the proceeding in which his earlier Application was decided, he did not bring an application for judicial review following the Decision or Reconsideration Decision in which the Application was dismissed.

38This 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 the applicant now claims. To seek review of the HRTO's decisions by filing a fresh application, which makes a bald allegation that the procedural rulings made in the earlier proceeding are discriminatory, constitutes a collateral attack, and is thus improper.

39The Application also raises concerns about issue estoppel. In the Reconsideration Decision, the HRTO dealt with the applicant's objection to certain comments and/or conduct on the part of the respondents which he alleged had occurred during the hearing. The HRTO noted that no objection had been made during the course of the hearing, and concluded that these allegations did not provide grounds for reconsideration. The applicant now raises again this alleged misconduct by the responding parties, by complaining that the Vice-chair discriminated against him by "allowing" it.

40In the companion case of Jogendra, I review in some detail the law concerning issue estoppel and collateral attack, which I will not reproduce here. Both doctrines address the problems of relitigation and lack of finality and are captured more generally by the doctrine of abuse of process. In Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (SCC), [2003] 3 S.C.R. 77, 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 (C.A.), at para. 55-56:

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.

41The doctrine of abuse of process is also applied by the courts, and by administrative tribunals such as the HRTO, in declining to proceed with matters which have no chance of success, or, to use the language of s.34(1)(b) of the former version of the Code, are "frivolous" or "vexatious". The HRTO has found on numerous occasions that 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 (C.A).

42The present Application, like the companion case of Jogendra, is a perfect demonstration of the concerns which underlie the courts' statements in City of Toronto and Currie v. Halton. The applicant is making a bald attempt to relitigate his unsuccessful earlier Application by now complaining that the proceedings were discriminatory. The allegations made, even if proven, would not amount to a breach of the Code: while the applicant objects that the Vice-chair released a copy of another application to the respondents, and makes un-particularized allegations that objectionable conduct by the respondents was tolerated by the Vice-chair, these allegations do not relate to grounds of discrimination under the Code, and instead constitute general objections to the fairness of the proceeding. Permitting such claims to proceed would be an abuse of process, and would clearly violate the principles of adjudicative economy, consistency, finality and integrity, which are central principles of the administrative justice system.

Reasonable apprehension of bias

43I have stated that, in the normal course, an application such as the one filed by Mr. Traversy would be dismissed on the basis of adjudicative immunity, or as an abuse of process. However, in the present case, the HRTO has raised a concern that it may be prevented from proceeding with any aspect of the Application, because the Application is made against the HRTO and one of its adjudicators.

44As noted above, neither party in the present Application objects to the Tribunal proceeding. In particular, the applicant takes the position that the HRTO both can and must proceed with the Application. Whether or not that is dispositive of the issue raised by the HRTO itself, I am satisfied that the Tribunal may proceed, for the reasons reviewed below.

45In the companion case of Jogendra, the applicant did take the position that the HRTO was unable to proceed with the Application, due to a reasonable apprehension of bias arising from the fact that the respondents were the HRTO and one of its adjudicators, as in the present case. That Decision therefore contains a detailed discussion of the principles concerning reasonable apprehension of bias, and the application of those principles in a case where the HRTO must first determine whether an application is properly before it.

46In considering the issue of bias, I noted that 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. As was the case in Jogendra, I am not called upon, in the present case, 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.

47Considering that specific context, as well as the more general context for decisions such as the one before me, and applying other relevant principles concerning the reasonable apprehension of bias, I reached the following conclusion in Jogendra:

Applying 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 paragraphs 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.

(...) 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.

48I am satisfied that this conclusion applies equally to the present Application. The allegations made in the present case also require a consideration of the HRTO's Rules and well-established caselaw in order to determine whether or not the Application is properly before the Tribunal. I am satisfied that I can undertake that determination without giving rise to a reasonable apprehension of bias, for the reasons set out in Jogendra.

Disposition

49I 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 respondents.

50For the reasons set out in paragraphs 23 to 35 above, I conclude that this Application cannot be brought against the respondent Liang or the HRTO, because of the doctrine of judicial immunity. As well, the Application clearly constitutes an abuse of process.

51The Application is dismissed.