HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Jayaraj

Applicant

-and-

J. Connan

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: October 4, 2012

Citation: 2012 HRTO 1894

Indexed as: Jayaraj v. Connan

WRITTEN SUBMISSIONS

David Jayaraj, Applicant

Self-represented

Introduction

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”). The applicant alleges that he experienced discrimination because of race, colour and place of origin during an appearance at a court on June 29, 2012.

2The applicant alleges that a Public Prosecutor understood from the applicant that documents had not been disclosed and asked the presiding Justice of the Peace for an adjournment on the applicant’s behalf, although the applicant had not asked for an adjournment. He alleges that the Justice of the Peace granted an adjournment although the applicant objected that he did not want an adjournment. He alleges that the Justice of the Peace did not agree with the applicant about the appropriate time for requesting disclosure. The Justice of the Peace asked the police to remove the applicant from the court. The applicant alleges that when he asked for the names of those involved he was lied to. He alleges that when he later returned to the court to submit a letter to the Justice of the Peace, the court staff refused to accept the letter. When he persisted, two security officers arrived. He alleges that they threatened him and asked for his identification and then made him leave the court building. The applicant alleges that all of the individuals involved looked at him in ways that conveyed to him that he was being treated harshly and unfairly because of his race, colour and place of origin. The applicant self-identifies as a person with dark skin of Dravidian origin.

3The Application names three personal respondents. The Application identifies Daniel Szimak as the public prosecutor who asked for the adjournment, and Keith Currie as the Justice of the Peace who granted the adjournment and asked the police to remove him from the court. The Application identifies J. Connan as one of the security guards who dealt with him when he returned to the court to deliver his letter of complaint.

4After receiving the Application, the Tribunal issued a Notice of Intent to Dismiss. It noted that the Application appeared to identify respondents who were a judge and a public prosecutor and that the Tribunal has found that it has no jurisdiction to hear Applications against such respondents, based on the doctrines of judicial immunity and prosecutorial immunity. The applicant was invited to make submissions and he filed submissions on September 24, 2012.

5The applicant filed submissions. He submits that the doctrines of judicial and prosecutorial immunity do not apply in his case because “committing fraud, cheating, falsities or deliberately making statements contrary to truth or facts” are not things that should be protected by judicial or prosecutorial immunity.

CONCLUSIONS

6As the Tribunal noted in Cartier v. Nairn, 2009 HRTO 2208, at paragraph 12:

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.

7The same principles apply to public prosecutors or Crown counsel who are alleged to have discriminated against a person in the course of their function as public prosecutor: Oliphant v. Ontario (Attorney General), 2009 HRTO 1902.

8The applicant’s allegations about the Justice of the Peace and the public prosecutor in this case clearly relate to things that were done or said in the course of carrying out their respective functions as Justice of the Peace and prosecutor. The doctrines of judicial and prosecutorial immunity apply to the allegations respecting them and the Application is dismissed against these two personal respondents.

9These doctrines do not apply to a court security officer and the Application is not dismissed as against the security officer.

10However, it appears from the applicant’s description of what happened that the security officers may have become involved because the applicant was creating a disturbance. While the applicant alleges that he was treated differently by the security officers because of his race, colour and place of origin, it is not clear that the applicant will be able to establish the link between the alleged actions of the security officers and the Code.

11If the Tribunal determines that an Application may have no reasonable prospect of success, the Tribunal’s Rules provide that the Tribunal may direct that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed.

12Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

13Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

14The Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant will prove a link between the respondent’s actions and the grounds cited. No witnesses will give evidence during the summary hearing.

15If the Tribunal determines that the Application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not find that the Application should be dismissed under Rule 19A, it will continue in the Tribunal process. The Application may be dismissed in whole or in part.

16A copy of the Application is delivered to the respondent with this Case Assessment Direction. The respondent need not file any materials or a Response to the Application unless directed to do so by the Tribunal. The respondent must write to the Tribunal, with a copy to the applicant, within 14 days of the date of this Case Assessment Direction, providing contact information for the person to whom documents should be delivered.

17A Notice of Summary Hearing will follow from the Registrar’s Office. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

18The parties may wish to consult the Tribunal’s Practice Direction on Summary Hearing Requests, available on the Tribunal’s website at www.hrto.ca.

19I am not seized of this Application.

Dated at Toronto, this 4th day of October, 2012.