HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Andrew Kipiniak Applicant
-and-
Superior Court of Justice Small Claims Court Respondent
Interim Decision
Adjudicator: David A. Wright Date: April 20, 2011 Citation: 2011 HRTO 793 Indexed as: Kipiniak v. Superior Court of Justice Small Claims Court
WRITTEN SUBMISSIONS
Andrew Kapiniak, Applicant ) Self-represented
1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 ("Code"), as amended, filed on February 10, 2011. The applicant alleges that the respondent discriminated against him with respect to services because of disability. First, he says, a Deputy Judge did not permit him to make an audio recording of a Small Claims Court hearing using his own personal recorder. Second, he alleges that during a mediation at the Small Claims Court the mediator did not permit him to make an audio recording. According to the applicant, because of a disability he is unable to take notes and he requires the recording as an accommodation.
2The Tribunal issued a Notice of Intent to Dismiss, seeking submissions from the applicant on whether the Application falls outside its jurisdiction as a result of the doctrine of judicial immunity. The applicant was directed to the Tribunal's decisions in Cartier v. Nairn, 2009 HRTO 2208 and Hazel v. Ainsworth Engineered Corp., 2009 HRTO 2180. The applicant has made submissions in which he opposes the dismissal of the Application.
DECISION
3At this stage, the issue I must decide is whether it is plain and obvious that an Application is outside the Tribunal's jurisdiction. It is plain and obvious that the Application, as it relates to the judge's actions during the small claims court hearing, falls outside the Tribunal's jurisdiction because of the doctrine of judicial immunity. This aspect of the Application is dismissed. It is not plain and obvious that the Application, as it relates to the mediator's actions during the mediation, is outside the Tribunal's jurisdiction, and this portion of the Application shall continue in the Tribunal's process.
ANALYSIS
4The applicant argues that the Application has been filed against the Court and not an individual judge. He states that he is challenging a policy of the Small Claims Court administration in not permitting audio recording devices, which he says is not only contrary to the Code, but also inconsistent with the Courts of Justice Act, R.S.O. 1990, c. C.43.
5In relation to the alleged actions of the judge at the hearing, it is plain and obvious that they fall within the concept of judicial immunity and are therefore outside the Tribunal's jurisdiction (power) to decide. The Tribunal explained this concept as follows in Cartier, supra at paras. 12-15:
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), 2000 CanLII 17120 (FCA), 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. In Taylor, Sexton J.A. for the Federal Court of Appeal explained why judicial immunity was so important to judicial independence:
...[T]he most serious consequence of permitting judges to be sued for their decisions is that judicial independence would be severely compromised. If judges recognized that they could be brought to account for their decisions, their decisions might not be based on a dispassionate appreciation of the facts and law related to the dispute. Rather, they might be tempered by thoughts of which party would be more likely to bring an action if they were disappointed by the result, or by thoughts of whether a ground-breaking but just approach to a difficult legal problem might be later impugned in an action for damages against that judge, all of which would be raised by the mere threat of litigation. In Lord Denning's words, a judge would "turn the pages of his books with trembling fingers, asking himself: 'If I do this, shall I be liable in damages?'"
Recently, the Supreme Court of British Columbia revisited the question of whether judicial immunity protects judicial actors from complaints that they have violated human rights legislation. In Gonzalez v. Ministry of Attorney General, 2009 BCSC 639, the Court upheld a decision of the British Columbia Human Rights Tribunal in which it found that it lacked jurisdiction to deal with part of a complaint alleging discrimination by a provincial court judge on the basis of disability in respect of employment and services. In that case, the judge had been accused of discriminating against legal counsel in a hearing under the Child Family and Community Service Act, R.S.B.C. 1996, c.46, when he made comments about how accommodation of her physical disability was prolonging the proceedings. The basis for the Tribunal's decision that it did not have jurisdiction in that matter was that the judge was protected from human rights complaints by judicial immunity.
The British Columbia Court reached its conclusion that the doctrine of judicial immunity protects judicial actors from complaints under human rights legislation cognizant of the public importance and quasi-constitutional status of human rights legislation:
Whether he was wrong or right, committed a human rights violation or simply acted inappropriately, the presiding judge said these things in the course of carrying out his legal duties.
There is no question that human rights legislation is quasi-constitutional and should be given a broad and liberal application. However, judicial immunity is also a constitutional principle and, as the Supreme Court of Canada held in Morier, the immunity of judges must be preserved even when it is alleged they have violated human rights. Judicial immunity is a necessary adjunct to the independence of the judiciary. Any erosion of this principle causes more detriment to the public's confidence in the judiciary than would result from insulating any particular judge from civil liability for wrongful acts in the course of his duties. As Lord Bridge of Harwich said in McC v. Mullan, [1984] 3 ALL E.R. 908 at p. 916:
The principle underlying this rule is clear. If one judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety-nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction.
6While the applicant attempts to draw a distinction between the content of the decision and the hearing, the cases cited in Cartier make it clear that judicial immunity applies to decisions made about the conduct of the hearing and control of the courtroom by the judge. Judicial independence, protected in the Constitution, includes the ability of the judge to make determinations about how a case is conducted. See Beauregard v. Canada, 1986 CanLII 24 (SCC), [1986] 2 S.C.R. 56 at para. 21. While the applicant has named the Superior Court as a respondent, the claim relates to the actions of the judge in controlling the courtroom and this is protected by judicial immunity. The Superior Court, like the judge, benefits from this protection and this portion of the Application is dismissed.
7I do not, however, to find at this stage that it is plain and obvious that the actions of the mediator, which may not be protected by the principles of judicial independence, are subject to immunity. Accordingly, the Application will be delivered to the respondent, which need only respond to the portions of it that relate to mediation. This is not a final decision on the issue of the Tribunal's jurisdiction: see Rule 13.5.
8I am not seized.
Dated at Toronto, this 20th day of April, 2011.
"signed by"____________
David A. Wright Associate Chair