C.B. v. Ontario (Attorney General), 2011 HRTO 782

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.B. by her Litigation Guardian D.B.

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Attorney General, Human Rights Tribunal of Ontario and Brian Cook

Respondents

DECISION

Adjudicator: Pamela Chapman

Date: April 20, 2011

Citation: 2011 HRTO 782

Indexed as: C.B. v. Ontario (Attorney General)

WRITTEN SUBMISSIONS

C.B., Applicant ) D.B., Representative

Her Majesty the Queen in Right of ) Ontario as represented by the Ministry ) of the Attorney General, Human ) Emtiaz Bala, Sara Blake and Rights Tribunal of Ontario and ) Baaba Forson, Counsel Brian Cook, Respondents and ) Michael Gottheil, Proposed Respondent )

1This is an Application filed on March 29, 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 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”) pursuant to an earlier and separate Application under the Code filed by the applicant, on February 13, 2009, in HRTO file 2009-01390-I (the “original Application”).

3The Application complains about the conduct of the personal respondent, a Tribunal Vice-chair, assigned to mediate the original Application, both during the mediation and in a subsequent telephone call, about the Tribunal’s decision denying the applicant’s request for interim relief, and about letters sent by the then Chair of the Tribunal in response to a complaint made by the applicant, pursuant to the Tribunal’s complaint policy. The Application also contains references to the conduct of the office of the Attorney General for Ontario and the Ombudsman of Ontario.

Context of this Decision

4This is the third 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.

5The HRTO recently issued two Decisions concerning the procedure to follow in cases of this nature: Jogendra v. Human Rights Tribunal of Ontario, 2011 HRTO 322, and Traversy v. Human Rights Tribunal of Ontario, 2011 HRTO 323. In Jogendra, I have explored in considerable detail the issues raised by those 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 on behalf of C.B. by her litigation guardian.

6The 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 on behalf of C.B., or indeed the present Application, prior to its assignment to me in July 2010. I have had no contact with the personal respondent concerning the present Application (or the earlier one), and have had no involvement in the representation of the HRTO respondents.

The Original Application

7As noted above, the applicant filed the original Application to the HRTO on February 13, 2009, under section 34 of the Code. The original Application was brought against a school board, the provincial Ministry of Education and four personal respondents. It alleges that the respondents discriminated against and failed to accommodate C.B., a minor child, in the provision of school services.

8The original Application proceeded to mediation on June 16, 2009, before the personal respondent, at which time a resolution was not reached. The Ministry of Education did not attend the mediation, and subsequently requested that a further mediation be scheduled.

9Following that request, the personal respondent contacted the applicant, through her parents, at the contact number provided in the Application, in order to determine whether or not it was advisable to schedule further mediation. There is a dispute as to whether or not other parties were also contacted, with the applicant alleging that they were not, while the HRTO respondents assert that they were.

10Additional mediation was in fact held, resulting in a settlement between the applicant and the school board. The Application was withdrawn as against the individual respondents, leaving the Ministry of Education as the sole respondent.

11The original Application is still before the HRTO. Mediation is ongoing as of the date of this Decision.

12The personal respondent has not been involved in the original Application since the events described above.

13On March 29, 2010, the present Application was filed.

Present Application

14As noted above, the applicant complains that the HRTO, the personal respondent and the HRTO’s Chair have discriminated against her, and reprised against her, on the basis of disability, in the provision of services. There are also references to the conduct of the office of the Attorney General and the Ontario Ombudsman. The description of the claim is quite brief, and the nature of the specific conduct complained of is critical to this decision, so I will reproduce most of it here.

15The Application alleges that the respondents breached their obligations under the Code when they “failed to protect the rights of a [sic] C[…] B[…]”. More specifically, “the mediator showed bias in mediation, did not recognize the violation of rights, caused undue pressure by phoning the applicant, [and] made rulings without facts by using precedent”.

16The respondents, other than the Vice-chair who was originally assigned to mediate the complaint, appear to enter the picture through the complaints of C.B.’s litigation guardian about the conduct of the personal respondent. The Application contains the following description of “complaints made to authority”: “Tho the chair of the HRTO, to the Attorney Generals office, to the ombudsman of Ontario.” In response to the question of whether or not an investigation occurred, and what was its outcome, the Application states: “not clear, facts were missed represented and the organization investigated itself then passed that information to the ombudsman when the ombudsman investigated”. (all errors in original)

17When asked on the Application form to “explain why you believe you were discriminated against on the ground of disability” the applicant’s litigation guardian states the following:

[T]he mediator (brian Cook) did nortknow the facts of the case, he failed to recognize the discrimnationthe hrto placed our daughter in a unsafe condition when they ruled against the interim remedy without looking at the facts or past occurances, the hrto phoned our home putting pressure on us to not go to a second mediation (that was requested by the minister of education) and failed to phone the respondents as they claimed, they failed to follow up on numerous request for a call back after that call, they failed to find a resolution and have left an offender to repeat their offences. (all errors in original)

18The Application does not provide the information requested as to what particular needs related to disability were not met, whether the applicant asked the respondents to meet those needs, and whether the respondents tried to meet the needs. There is also no clarification as to which respondent is said to have done what.

19The explanation as to why the applicant believes she was reprised against essentially repeats the earlier statements:

[T]he mediator phoned our premises and put undue pressure on me to skip mediation, he claimed that he called all the respondents but I have proof that he did not, htyefailed to protect the rights of a person with an intellectual disability, the mediator showed bias in the first mediatioonattempt and failed to recognize the rights denied to C.[…] B.[…]. (all errors in original)

20On May 14, 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”.

21The applicant filed submissions in response to this request which contain the following statement:

[T]his issue of bias was raised in the original application and is evident in the in correspondence between the tribunal and the applicant, in the form of self investigation of the original complaint and lack of timely response from both the chair, and the attorney generals office this matter for these reasons the bias exists and this application should be heard by a “disinterested person”.

22Submissions were also filed by the respondents on July 8, 2010. The respondents take the position that there is no reasonable apprehension of bias or other legal impediment to the Tribunal processing the Application.

23On November 8, 2010, the Tribunal issued a Case Assessment Direction (“CAD”) in this matter. The CAD states as follows at paragraphs 3-7:

(…) there are references in the application, and in the response of the applicant to the Registrar’s letter, to the conduct of the Attorney General’s office. In the application, the applicant refers to the Attorney General’s office only as “someone in authority” to whom she complained about the conduct of the mediator and the Tribunal. However, Her Majesty the Queen in Right of Ontario, as represented by the Attorney General of Ontario, was named as an organization respondent, which implies that the applicant intended to make some complaint about the conduct of that office. Furthermore, the applicant’s reply to the Registrar’s seems to include a complaint about either a lack of response, or a lack of a timely response, to a complaint made by the applicant to the Attorney General’s office(or to the Ombudsman of Ontario, or to both) although that is not clear. It is also not clear from the Application filed how the references to the Attorney General’s office relate to the other allegations made concerning the conduct of the Tribunal.

Clarification of this issue is important to the issue of the Tribunal’s jurisdiction, which was raised in the Registrar’s letter dated May 14, 2010, and about which the parties have now filed submissions with the Tribunal. The applicant, through her litigation guardian, is directed toadvise the Tribunal and the respondents, by November 12, 2010, whether or not she asserts that the Attorney General’s office has discriminated against her in the provision of services, and if so, how.

In the present Application, filed on March 29, 2010, the applicant names three responding parties: (1) the Human Rights Tribunal of Ontario, (2) Her Majesty the Queen In Right of Ontario, as represented by the Attorney General of Ontario, and (3) Brian Cook, who is a Vice-chair of the Human Rights Tribunal of Ontario. However, in subsequent e-mail correspondence to the Tribunal, on October 31, 2010, the applicant, through her litigation guardian, advises that it was her intention to include Michael Gottheil, the former Chair of the Tribunal, as an individual respondent. Mr. Gottheil’s name does appear on the original application, but only as the “Contact person in the organization”, for the organization respondent the Tribunal. There is no entry on the section of the application form dealing with individual respondents, which directs an applicant to “name the person you believe discriminated against you” (Mr. Cook is separately listed as an additional respondent on a separate sheet).

If the applicant seeks to add Mr. Gottheil as an individual respondent to the application, then that request must be made formally, by the filing of a Form 10, Request for Order during Proceedings. As well, the Application and Request for Order must be delivered to Mr. Gottheil pursuant to the Rules of the Tribunal; as of November 1, 2009, he ceased to be the Chair of the Tribunal and took office as the Executive Chair of the Environment and Land Tribunals Ontario. However, the applicant may wish to consider the Tribunal’s Practice Direction on Naming Respondents (http://www.hrto.ca/hrto/?q=en/node/94) prior to deciding whether it is necessary to name Mr. Gottheil separately, with particular reference to the following sections:

Where there is an organizational respondent who may be held liable for the alleged infringement and is in a position to satisfy any remedies ordered, the naming of individual respondents is generally discouraged. The HRTO has noted in its decisions that the unnecessary naming of individuals, whose conduct is not a central issue in the alleged harassment or discrimination, adds to the complexity of the case and can act as a roadblock to resolution of the dispute (see Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14).

If an individual was acting in the regular course of their employment or duties, you may not need to name the individual as a separate respondent in addition to the organization. Before deciding to name an individual respondent, you may wish to consider:

Is there an organization respondent who you are alleging is liable for the same conduct?

Is there any reason why the organization respondent may not be able to respond to or remedy the alleged infringement of the Human Rights Code?

Is the conduct of the individual a central issue or is the nature of the alleged conduct such that it may be appropriate to award a remedy specifically against that individual if a human rights violation is found, for example where it is alleged that the individual engaged in harassment contrary to the Human Rights Code?

The decision of the Tribunal in Smyth v. Toronto Police Services Board, 2009 HRTO 1513 also provides guidance as to when it is appropriate to add an individual respondent employed by or acting on behalf of an organization respondent.

The applicant, through her litigation guardian, is directed to advise the Tribunal and the respondents, by November 15, 2010, whether she intends to seek the addition of Michael Gottheil as an individual respondent in this matter. If so, the applicant must file a Form 10, Request for Order in a Proceeding, and deliver it to Mr. Gottheil, together with a copy of the Application.

24The applicant was further directed, through her litigation guardian, to advise the Tribunal and the respondents, by November 12, 2010, whether or not she asserts that the Attorney General’s office has discriminated against her in the provision of services, and if so, how.

25The applicant responded to the CAD by filing a Form 10, seeking the addition of Gottheil, who was Chair of the HRTO at the time of the events complained of, as an individual respondent. She also provided additional information about the role of the Attorney General in the Application, confirming that the applicant complained to the Attorney General’s office that she was not satisfied with the outcome of her complaint to the Chair concerning the conduct of the personal respondent. According to the applicant, the Attorney General’s office did not respond.

26An amended Application was also filed at that time, which provides some clarification as to the nature of the allegations made. The conduct of the personal respondent at the mediation alleged to constitute discrimination was that he spent the majority of time with the respondents, and that he talked with the applicant’s parents about their influence on their daughter and contribution to the anger about the dispute with school officials. As well, it is alleged that the mediator “seemed not familiar with the right to an education”.

27With respect to denial of an interim remedy, the amended Application complains that the ruling was “based on previous precedents and not on factual events”.

28The third incident complained of is the call from the personal respondent concerning the Ministry’s request for a further mediation session. The applicant complains that the mediator asked “why do you want mediation”, what were the hopes for additional mediation, mentioned the cost of holding an additional session, and offered the opinion that the case was “beyond mediation”. There is then a complaint that the mediator failed to return calls from the applicant’s litigation guardian following the call about a second mediation session.

29The remaining allegations are that the applicant’s litigation guardian then made a formal complaint to the Chair about the conduct of the personal respondent, and then a further complaint to the office of the Attorney General when he did not feel that the written responses of the Chair resolved his concerns about the conduct of the mediation and the follow-up call.

30The complaint is summarized as:

(…)we have been bullied and ignored by all involved as we advocate for our daughter’s rights the HRTO and the Attorney General’s office is not prepared to deal with such things as the have on numerous occasions either mis-communicated or not communicated at all, we are most times left out on our own to protect our daughter’s rights” (all errors in original).

31Finally, the amended Application explains the remedy being sought, which includes special damages for expenses incurred to provide private services for the applicant, compensation for lost employment opportunity for the applicant’s mother due to her need to stay home to care for the applicant, and general damages for injury to dignity, feelings and self-respect arising from the discrimination by the school board and Ministry of Education. The remedy is summarized as:

we ask for all that we asked for in the complaint 2009-10390-I due to the influence and the poor response of the HRTO and the Attorney General’s Office.

Reasonable Apprehension of Bias

32As noted in this review of the facts, there are several preliminary issues to be resolved in this matter, as well as serious questions about the legal foundation for the Application.

33First, there is the issue raised in the Registrar’s letter of May 14, 2010, concerning the ability of the HRTO to proceed when an application is made against it or one of its adjudicators. The applicant has alleged that, for this reason, the Tribunal is prevented from proceeding with the Application, and that a “disinterested person” should be appointed.

34In the case of Jogendra, supra, the applicant similarly took the position that the HRTO was unable to proceed with that application, or even to process it, 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.

35In 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, and the companion case of Traversy, I am not called upon, at this juncture in the present case, to hear evidence, find facts, or make a legal determination as to whether a breach of the Code has been established on the evidence. Instead, I am faced with an Application which presents certain preliminary issues – including which parties may appropriately be made respondents – as well as certain jurisdictional impediments which merit consideration in order to determine whether the case is properly before the HRTO. I have been assigned to consider this Application without any previous involvement in the original Application which forms the basis of the Application, I have had no contact with the personal respondent or the Chair concerning the present case (or indeed the earlier ones), and my role has been scrupulously separated from the representation of the HRTO respondents.

36Considering 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 at paragraphs 87 and 90:

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.

I 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 make certain preliminary determinations, and to provide procedural directions. I am satisfied that I can undertake these determinations without giving rise to a reasonable apprehension of bias, for the reasons set out in Jogendra.

37While, for these reasons, this Application does not require a discussion of the application of Section 16 of the POA, a few comments about its provisions may be appropriate in order that the applicant, through her litigation guardian, may better understand the effect of requesting the appointment of a “disinterested person”. The HRTO has no authority to make such an appointment; rather, the only question it can determine where it is alleged that it should not hear an application made against itself or one of its adjudicators, is whether or not there is a reasonable apprehension of bias, and, if so, whether or not there is anyone at the HRTO who can proceed to hear the application. [For further discussion, see section 16 of the POA, paragraphs 91 to 104 of Jogendra, and Service Employees International Union, Local 204 v. Johnson, 1997 CanLII 12280 (ON S.C.)].

38It is worth noting that this leaves a party who alleges that bias results in there being no person at the HRTO empowered to hear his or her application in the position of having to apply for the appointment of a “disinterested person”, by bringing a motion to the Superior Court of Justice. There is no established process for taking such a step (other than the Rules of Civil Procedure) and it is not clear how such an application will then be heard, or by whom, as the procedure created by the POA is ad hoc. This may make it difficult for self-represented parties to proceed in that way, and is another reason why the HRTO should consider carefully whether or not an application filed with the Tribunal is properly before it and makes allegations of discrimination which fall under the jurisdiction of the Code, before finding that it cannot further process an application of this nature.

Preliminary Issues

39I have concluded that the HRTO both can, and should, proceed to determine procedural matters, and to 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).

40There are a number of preliminary issues disclosed by the Application, together with the Form 10 Request for an Order. First, there is a Request to add Michael Gottheil, as an individual respondent. Mr. Gottheil was the Chair of the HRTO at the time of the events complained of by the applicant. By the time this Application was filed, he no longer held that position, and had been appointed Executive Chair of the Environmental and Land Tribunals of Ontario. He is now the Executive Chair of the social justice cluster, and is, therefore, once again Chair of the HRTO. He will be referred to throughout the remainder of this decision as the “Chair”.

41There is also a question about whether or not the Attorney General is properly named as a respondent; while the applicant provided some clarification of the nature of the allegations against the Attorney General’s office in her response to the CAD of November 8, 2010, it is not clear that the facts alleged disclose a breach of the Code.

42As well, there are preliminary and jurisdictional issues which arise from the facts pleaded. As will be discussed below, it does not appear that this Application contains allegations which, if proven, would constitute discrimination (or reprisal) within the meaning of the Code. As well, the bringing of this Application in the context of the original Application raises issues of abuse of process.

43Finally, the central allegations are made against the personal respondent, who was exercising his duties as an adjudicator of the Tribunal in his dealings with the applicant’s Litigation Guardian (her father) and her mother. This raises issues of adjudicative immunity and the definition of “services”, which are discussed in the response of the Chair to the Request to add him as a respondent. I will deal with each of these issues in turn.

Appropriate Respondents

44The applicant has filed a Form 10, seeking to add the Chair as an individual respondent in this matter. As noted above, the HRTO has issued a Practice Direction, and considerable caselaw, on when it is appropriate to add an individual respondent where he or she was acting on behalf of an organizational respondent already named. In the present case, the Chair’s dealings with the applicant through her litigation guardian occurred as a result of his responsibility for dealing with complaints concerning the provision of services by the Tribunal.

45The decision of the HRTO in Smyth v. Toronto Police Services Board, 2009 HRTO 1513 (“Smyth”), is the leading case on the factors to be considered when deciding whether to add an individual respondent. In that decision, the HRTO identified the following three questions to be answered when a request to add a respondent is made (at paragraph 12):

(1) Are there allegations made that could support a finding that the proposed respondent violated the Code?

(2) If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

(3) Would it be fair, in all the circumstances, to add the proposed respondent?

46In respect of the second question, the HRTO in Smyth considered the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 (at paragraph 5): whether there is an organization that is part of the proceeding, which is able to take responsibility for the conduct and whether the conduct of the individual respondent is a central issue in the proceedings. It also cited the following passage from Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 (at paragraph 42), which emphasizes the importance of not adding individual respondents who were acting on behalf of organizational respondents unless there is a “compelling juridical reason” to do so:

The unnecessary naming of personal respondents is a practice to be discouraged, as this serves to unnecessarily add to the complexity of proceedings and can often operate as a roadblock to resolution. Pursuant to section 45(1) of the Code, a corporation is deemed to be liable for “any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent”. Where there is no issue as to the ability of a corporate respondent to respond to or remedy an alleged Code infringement and no issue raised as to a corporate respondent’s deemed or vicarious liability for the actions of an individual who is sought to be added as a personal respondent, then in my view the individual ought not be added as a personal respondent in the absence of some compelling juridical reason. A compelling juridical reason may exist, for example, where it is the individual conduct of a proposed personal respondent that is a central issue as opposed to actions which are more in the nature of following organizational practices or policies or where the nature of the alleged conduct of a proposed personal respondent may make it appropriate to award a remedy specifically against that individual if an infringement is found.

47Applying these considerations to the facts of the present Application, it is clear that there is no compelling reason to add Michael Gottheil as a personal respondent. There is no question that, in responding to the applicant’s Litigation Guardian, the Chair was acting in his capacity as a representative of the HRTO. None of the allegations made relate to personal conduct by the Chair; on the contrary, it is admitted that his dealings with the applicant’s father occurred through the HRTO’s complaints policy. The HRTO has been named as an organization respondent, and has not indicated any impediment in its ability to answer fully for the actions of the Chair. Any jurisdictional or other impediment to a finding of liability on the part of the HRTO would apply equally to the Chair. For these reasons, I conclude that no purpose would be served by adding the Chair as an individual respondent, and I decline to grant the applicant’s Request to do so.

48The Application also names the Queen in Right of Ontario as represented by the Ministry of Attorney General as an organization respondent. As noted above, the applicant was asked to clarify the reason for this inclusion, as the Application as filed disclosed no conduct on the part of the Attorney General’s office which might constitute a breach of the Code. The clarification provided by the applicant pursuant to the CAD dated November 8, 2010, does not assist in establishing a foundation for the filing of this Application against the Ministry of Attorney General; there is nothing more than a general statement that “choosing to ignore my request to discuss the complaint of the chair and the vice-chair is discrimination”. I will deal with this issue in the discussion below as to the HRTO’s jurisdiction to hear this Application.

Jurisdiction of the HRTO

49As described above, the applicant complains about the personal respondent’s handling of the first day of mediation on the original complaint, and in particular about his call to the applicant’s parents concerning the prospect of further mediation. There is also a complaint that the HRTO did not grant interim relief in the original Application. The additional allegations in the Application all arise out of these events, as they constitute a complaint about the response of the Chair to the applicant’s complaint about these same matters, and then a complaint about the response of the Attorney General’s office to a complaint about the Chair’s handling of that complaint. However, it is nowhere clear in the Application how these objections relate to a prohibited ground under the Code; at most, the applicant alleges that the original conduct, and the failure to respond the way she demanded to the complaints subsequently made, have interfered with her attempt to seek relief in her original Application alleging discrimination on the part of the school board and Ministry of Education.

50A complaint of this nature raises challenging issues as to the scope of the HRTO’s jurisdiction to hear complaints concerning its conduct with respect to an ongoing application, and also about the definition of “discrimination”.

51There are significant procedural challenges created by such an application. First, as noted above, the original Application is ongoing; the applicant continues to seek the HRTO’s assistance in the vindication of her human rights under the Code. If, as the applicant suggests, a reasonable apprehension of bias would be created by the HRTO proceeding to hear a complaint against itself, how then could the same Tribunal proceed with the original Application about which these allegations are made? It is hard to imagine the HRTO undertaking two parallel proceedings, one of which complains about the other. But it is equally hard to see how failing to proceed with the original Application would benefit the applicant, as it is in that proceeding that her claim of discriminatory treatment in the school system will be resolved.

52As well, as noted above, the original Application has been settled as against the respondent school board and the personal respondents and remains ongoing only as against the Ministry of Education. The settlement of a significant portion of the original Application, subsequent to the day of mediation (and telephone call) complained of, suggests that the matters complained of may well not have interfered in any material way with its resolution. But it would be impossible at this juncture to assess what impact, if any, the impugned conduct may ultimately have on the applicant’s success in advancing her allegations of discriminatory treatment at school, given that the original Application is still before the HRTO. This too suggests that the HRTO (or another adjudicator, perhaps appointed through the POA) should be reluctant to engage in an assessment of whether or not the conduct of an ongoing application in some way breaches the Code while that application remains unresolved, as issues of remedy will be difficult or impossible to determine. Deferral of the subsequent application may be appropriate, but, as will be discussed below in the context of abuse of process, it will also be important to consider whether an applicant who complains of discriminatory treatment in an ongoing application can seek to have those concerns addressed within the original proceeding.

53In addition to these practical impediments to the advancement of such a case, this Application poses a more general problem for the HRTO: how can a tribunal meet its statutory mandate to fairly and efficiently mediate and/or adjudicate a complaint of discrimination, if an applicant can bring a further allegation of discrimination against the Tribunal itself, at any stage of the proceeding, on the basis that the Application is not being handled the way he or she wishes, or that decisions or actions have been taken with which the applicant disagrees? There is nothing about the conduct complained of by the applicant which on its face would constitute discrimination – it becomes discriminatory, says the applicant, only because it has interfered with her pursuit of justice. If this type of complaint can be brought as a claim of discrimination, then the HRTO could never decide against an applicant seeking to protect human rights – or take any administrative step or issue a procedural ruling which runs contrary to his or her perceived interests – without itself breaching the Code.

54In this way, the bringing of the present Application may well constitute an abuse of process. First, at least some of what the applicant now complains about could more properly be raised within the original Application. For example, the applicant alleges that the personal respondent was biased against her, and is presumably concerned that this alleged bias had some material impact upon the outcome of mediation and the prospects of reaching a beneficial settlement. In an ongoing proceeding, the proper approach to making such an allegation is to raise a concern about a denial of procedural fairness, either by alleging reasonable apprehension of bias to the adjudicator and seeking a recusal (perhaps not relevant here given that the personal respondent has had no further involvement in the matter), or ultimately through a judicial review application, should the alleged bias be alleged to have an impact on the outcome of the proceeding.

55Similarly, the complaint that the HRTO failed to grant interim relief in the original Application would more properly be the subject of a judicial review application, should this decision have an impact on the applicant which is not remedied in the first proceeding.

56For these reasons, the present Application has the qualities of a collateral attack, and is thus also an abuse of process. The doctrines of collateral attack, and issue estoppel, both of which contribute to the concept of abuse of process, were discussed at some length in Jogendra, at paragraphs 56 to 68. The following quotes from that decision explain the significance of these rules which are designed to discourage relitigation and duplication of proceedings:

The rule against collateral attack holds that "a court order, made by a court having jurisdiction to make it," may not be attacked "in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment" (Wilson v. The Queen, 1983 CanLII 35 (S.C.C.), [1983] 2 S.C.R. 594, per McIntyre J., at p. 599). As the Court said in that case “the rationale behind the rule is powerful: the rule seeks to maintain the rule of law and to preserve the repute of the administration of justice.”

While it is primarily a rule governing judicial proceedings, it has also been applied to administrative proceedings. 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…

In 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 (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.

Adopting 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, “where allowing the litigation to proceed would…violate such principles as judicial economy, consistency, finality and the integrity of the administration of justice”.

The 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.

57One aspect of this Application clearly raises concerns about collateral attack and issue estoppel: the applicant complains about the HRTO’s decision not to grant interim relief in the original Application. However, it is also an abuse of process to attempt to pursue procedural and substantive complaints about the handling of the original Application by alleging that any conduct by members of the HRTO, as well as any decision or procedural direction, which the applicant’s Litigation Guardian believes does not serve her interests, constitutes discrimination.

58There is also no legal support for this definition of discrimination. As noted above, the theory on which the present Application is advanced is that a tribunal which does not rule in the applicant’s favour and/or conduct itself as the applicant’s representative wishes, itself engages in discrimination. The discrimination complained of arises from the claim that the HRTO’s conduct during and following the initial date of mediation, and its response to the applicant’s complaint about that conduct (as well as the response of the Attorney General’s office), has impeded the applicant’s pursuit of a discrimination complaint against other parties, in the original Application.

59I find that this is not a theory on which a finding of discrimination under the Code can be made. If it were, quite simply, the HRTO could never conclude a case by finding against an applicant claiming discrimination – something which it clearly has the jurisdiction to do (and must do, when appropriate, in order to meet its statutory mandate). Rulings made against an applicant, and/or procedural directions or conduct with which that applicant disagrees, also do not automatically constitute a reprisal, in the absence of any facts which establish reprisal for the pursuit of rights under the Code.

60Given that the facts alleged in the present Application, against any of the respondents, do not allege a foundation for a finding of discriminatory conduct within the meaning of the Code, I conclude that the HRTO has no jurisdiction over the Application.

Adjudicative Immunity and the Definition of “Services”

61As discussed above, the main allegations in the present Application relate to the conduct of the personal respondent, a Vice-chair of the HRTO, who was assigned to mediate the original application, and had contact with the applicant’s parents in that capacity. The doctrine of judicial immunity has been considered in numerous decisions in which applications have alleged a breach of the Code by other administrative agencies, including Cartier v. Nairn 2009 HRTO 2208 (“Cartier”); Hazel v. Ainsworth Engineered Corp., 2009 HRTO 2180 (“Hazel”); and Robinson v. Ontario Municipal Board, 2010 HRTO 207.

62The following discussion at paragraphs 12-16 of Cartier 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. (…)

63A 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; and Zaki v. Ontario (Community and Social Services), 2009 HRTO 1595.

64This analysis has been extended to the mediation, as well as the adjudication, of applications. Indeed, the leading case of Hazel, supra, involves an arbitrator mediating and settling a grievance at arbitration. In other cases, such as Ballieram v. Workplace Safety and Insurance Board, 2010 HRTO 712, reconsideration refused 2010 HRTO 2279 and Karzi v. Jones, 2010 HRTO 982, the Tribunal has confirmed that the doctrine of judicial immunity applies to “actions directed toward the resolution of legal claims before a court or arbitrator” (Karzi).

65As reviewed in the facts set out above, the applicant in the present case complains about the exercise, by the HRTO respondents, of the adjudicative powers granted by the Code. Her allegations relate specifically to the personal respondent’s actions in the course of conducting the initial mediation session, in a follow-up call concerning the potential for a further mediation session, and as well to the HRTO’s decision not to grant interim relief.

66For these reasons, it appears that the allegations made in the present Application may all relate to the “content, reasons and result” of adjudicative decisions, and therefore would not relate to “services” within the meaning of the Code. As well, the actions of at least the personal respondent (and to some extent the HRTO more generally) were adjudicative in nature, and the doctrine of judicial immunity would therefore prevent an application being made against them. In the normal course, the parties to the present Application would have received a letter from the Registrar seeking submissions on these issues, and the Application would have been immediately considered for early dismissal pursuant to Rule 13 and the well-established jurisprudence of the HRTO.

67I will not rule on this issue, given my decision above on the HRTO’s jurisdiction over this Application more generally. But it is important to note the existence of this other serious challenge to the jurisdiction of the Tribunal to proceed with this case.

Disposition

68It is important to note that the rulings in this Application have no impact on the original Application in HRTO file 2009-01390-I, which remains before the Tribunal and is ongoing in mediation.

69For the reasons set out above, the Application is dismissed.