Ruffolo v. Liang, 2012 HRTO 360

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Achille John Ruffolo

Applicant

-and-

Sherry Liang and Gina Saccoccio Brannan

Respondents

DECISION

Adjudicator: Caroline Rowan

Date: February 21, 2012

Citation: 2012 HRTO 360

Indexed as: Ruffolo v. Liang

1This is an Application filed on November 24, 2011 under section 34 of Part VI of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In the Application, Achille John Ruffolo alleges that he has been discriminated against in respect of goods, services and facilities on the ground of disability. The applicant names as respondents in this proceeding Sherry Liang, a Vice-chair of the Human Rights Tribunal of Ontario, as well as Gina Saccoccio Brannon, counsel for the respondent(s) (“Opposing Counsel”) in another human rights proceeding commenced by the applicant. In support of the present Application, the applicant states that he has been involved in several complaints against Belair Direct and its employees and that he requested from both respondents (being the Vice-chair and Opposing Counsel) that his disability be accommodated and they refused. The applicant did not specifically indicate in his Application what accommodation he requested or in which of his several complaints against Belair Direct and its employees he sought the accommodations in question.

3On December 14, 2011, the Registrar issued a Notice of Intent to Dismiss (“NOID”) indicating that it appears that the Application is outside of the Tribunal’s jurisdiction for the following two reasons:

(1) the issues raised relate to the conduct of a lawyer representing a party in another proceeding;

(2) a respondent is an arbitrator, adjudicator or a judge whose decision-making is subject to the doctrine of judicial immunity.

4The applicant filed submissions in response to the NOID by e-mail dated December 14, 2011, in which he asserts that the Tribunal decisions in Belso v. York Region Police, 2009 HRTO 757, and Cooper v. Pinkofskys, 2008 HRTO 390 (referred to in the NOID), are distinguishable because they dealt with services whereas in his case he is asking for an accommodation and that the duty to accommodate under the Code does not provide an exception for lawyers. The applicant asserts that a lawyer cannot make derogatory comments about his disability and then deny him what the law provides, by which the applicant presumably refers to the requested accommodation of his disability. With respect to the issue of judicial immunity as it relates to the Vice-chair in question, the applicant submits simply that, if the Tribunal has immunity to discriminate against persons then “it needs to be disbanded and a real human rights tribunal put in place.”

Opposing Counsel as Respondent

5The Tribunal’s jurisdiction is based on the Code, which prohibits discrimination in “employment”, in “goods, services and facilities”, in “accommodation”, in “contracts” and in membership in “vocational associations” on the basis of certain protected grounds listed in the Code. The Tribunal does not have a general power to inquire into all relationships and all difficulties that may occur in those relationships, but rather only those that properly fall within one of the five social areas of the Code.

6As noted above, the applicant in the present case asserts that he has been discriminated against in goods, services and facilities on the ground of disability. More specifically, he refers to Opposing Counsel’s alleged derogatory remarks about his disability and her alleged refusal to agree to unspecified requests for accommodation of his disability in the course of another human rights proceeding involving the applicant and Opposing Counsel.

7The Tribunal has however determined that the relationship between a lawyer and an opposing party is not covered by the Code. (See Belso, supra and Pinkofskys, supra.) While the applicant suggests that these decisions are distinguishable because they concern “services” and he was asking for accommodation of his disability, the present Application does, in fact, also purport to concern discrimination in respect of the area of “services, goods and facilities” on the prohibited ground of disability. In the present case, there is no suggestion that Opposing Counsel was providing either goods or facilities to the applicant or that there is a “services” relationship between the applicant and Opposing Counsel. In the circumstances, the relationship between Opposing Counsel and the applicant is not covered by the provisions of the Code or subject to review by the Tribunal.

Judicial Immunity

8The doctrine of judicial immunity has been applied by this Tribunal to shield administrative tribunals (which would include this Tribunal) and courts from Applications concerning the actions of judges and adjudicators while acting in their adjudicative capacity. The doctrine shields decision-makers from complaints about their conduct and 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.)

9The principle of judicial immunity has been applied in situations similar to those in the present case, in which the complaint concerned the adjudicator’s alleged failure to accommodate the applicant’s disability during the course of a proceeding before an administrative tribunal. (See, for example, Howes v. Ontario (Municipal Affairs), 2010 HRTO 1822.) In addition, as recently 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 and that, 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.

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.