HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Aristide Tsemo
Applicant
-and-
Human Rights Tribunal of Ontario
Respondent
DECISION
Adjudicator: Caroline Rowan
Indexed as: Tsemo v. Human Rights Tribunal of Ontario
WRITTEN SUBMISSIONS
Aristide Tsemo, Applicant
Self-represented
IINTRODUCTION
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services and facilities because of race.
2In the Application, the applicant, Aristide Tsemo, alleges that the respondent, Human Rights Tribunal of Ontario (the “HRTO”), discriminated against him during the course of an adjudication of his Application in Tribunal File No. TR-0086-09, which application was filed against the University of Toronto (the “U of T”). More specifically, the applicant takes issue with certain rulings made in that proceeding by Michelle Flaherty, a Vice-Chair of the HRTO at the relevant time. The applicant alleges that Vice-Chair Flaherty’s rulings were inconsistent with an earlier preliminary ruling made by myself in that proceeding and were against his interests and, as such, that the HRTO discriminated against him because of race.
3On March 7, 2012, the Registrar issued a Notice of Intent to Dismiss (“NOID”) indicating that it appears that the Application is outside of the Tribunal’s jurisdiction because the respondent is an arbitrator or a judge.
SUBMISSIONS OF THE APPLICANT
4The applicant filed submissions in response to the NOID by e-mail dated March 18, 2012, in which he takes the position that judicial immunity does not apply if the judge breaches the law by failing to consider facts brought before her and by denying the rights of the defence. It further appears from a review of the Application and the submissions filed by the applicant in response to the NOID that the substance of the applicant’s complaint relates to rulings made by Vice-Chair Flaherty concerning the scope of the applicant’s Application against the University of Toronto, including the appropriate scope of the evidence relevant to that Application.
5In support of his position that judicial immunity is not absolute, the applicant relies on the comments made in Hazel v. Ainsworth Engineered, 2009 HRTO 2180 at paras. 71 and 86 to the effect that tribunals and courts provide services within the meaning of the Code and that judicial immunity should be given no larger an application than is necessary to protect independence of decision-making. The applicant also relies on the decision in Riad v. Superior Court of Justice, 2011 HRTO 1708, in which the application was permitted to proceed against the respondent solely on the issue of whether the applicant’s hearing impairment was accommodated in the courtroom. The applicant also refers to the decision in Stephens v. Lynx Industries Inc., 2006 HRTO 31 for the proposition that a final decision of a decision-making body may be reopened in exceptional circumstances.
DECISION
6As the applicant correctly points out, a tribunal or a court as institutional service providers are not subject to an absolute shield from human rights claims. The doctrine of judicial immunity does nonetheless apply to the actions of judges and adjudicators while acting in their adjudicative capacity, regardless of whether or not they may be said to have committed an error of law or otherwise committed an error which may be the subject of remedy before the courts on appeal or judicial review.
7The doctrine of judicial immunity prohibits legal proceedings against judicial actors based on their actions as adjudicators or decision-makers and has been applied by this Tribunal to shield administrative tribunals (which would include the HRTO) and courts from Applications concerning the actions of judges and adjudicators while acting in their adjudicative capacity. The doctrine is rooted in the principle of judicial independence, which is meant to ensure that judicial actors are free to execute their decision-making duties with independence and without fear of consequences. (See Cartier v. Nairn, 2009 HRTO 2208).
8In addition, as noted in Kogan v. Human Rights Tribunal of Ontario, 2011 HRTO 1486, judicial immunity applies even where a dissatisfied party alleges that the adjudicator did not follow the rules of natural justice. While such failure may result in decisions being overturned on appeal or judicial review, it does not make the adjudicator or judge personally liable for such errors.
9In the circumstances of this Application, all of the allegations made by the applicant concern rulings made by Vice-Chair Flaherty in the exercise of her adjudicative function as a Vice-Chair of the HRTO. As noted above, the decisions which are the subject of the present Application include decisions made by the Vice-Chair of the HRTO concerning the facts and issues to be litigated in the Application against U of T, having regard to, among other things, an earlier preliminary ruling made in that Application. Since all decisions affecting the applicant were adjudicative in nature and made by a Vice-Chair of the respondent exercising its statutory duties, they fall outside the jurisdiction of the Tribunal.
ORDER
10Based on the Application and the applicant’s submissions, it is plain and obvious that the Application falls outside of the jurisdiction of the Tribunal. This Application is therefore dismissed.
Dated at Toronto, this 30th day of July, 2012.
Signed by
Caroline Rowan
Member