Taite v. Human Rights Tribunal of Ontario, 2013 HRTO 1099

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

John Taite

Applicant

-and-

Human Rights Tribunal of Ontario

Respondent

DECISION

Adjudicator: Caroline Rowan

Date: June 20, 2013

Citation: 2013 HRTO 1099

Indexed as: Taite v. Human Rights Tribunal of Ontario

WRITTEN SUBMISSIONS

John Taite, 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”), alleging discrimination and harassment with respect to goods, services and facilities because of disability, sex (gender), and age.

2In the Application, the applicant, John Taite, 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. 2009-04138-I against Carleton Condominium Corporation 91. More specifically, the applicant takes issue with certain interim rulings and procedural directions made in that proceeding by Michelle Flaherty, a Vice-chair of the HRTO at the relevant time, and what he further alleges was the subsequent failure of the Associate Chair to take any action in relation to the applicant’s complaint to him about her conduct.

3On November 26, 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 adjudicator and because the applicant appears to be challenging the decision or outcome of an adjudicative process.

NATURE OF THE APPLICATION AND SUBMISSIONS OF THE APPLICANT

4The application alleges that Vice-chair Flaherty gave differential judicial consideration and evaluation to his file than she gave to another file involving a 23-year-old waitress at Marshy’s Bar in Ottawa in a different proceeding in which Vice-chair Flaherty was also the adjudicator. Even though his matter is still ongoing and remains undecided at the time of writing, the applicant contends that he was discriminated against and harassed on the ground of disability, age, sex (gender) when he was allegedly denied independent and competent adjudication of his application. The applicant’s allegations concerning the adjudication of his application in Tribunal File No. 2009-04138-I include what he characterizes as the Vice-chair’s rejection of his request that she determine whether he is “disabled” prior to the conclusion of all of the evidence, and the Vice-chair’s decision to seek submissions regarding whether the application has a reasonable prospect of success after having negotiated a partial resolution of the application when acting as a mediator. The applicant also complains about the failure of the Associate Chair of the HRTO to do anything when the applicant contacted him in June 2012 complaining about bias in the adjudication of his file.

5The applicant filed submissions in response to the NOID by e-mail dated April 30, 2013. The applicant subsequently filed amended submissions on May 3, 2013. The submissions filed are in both cases addressed to the Judicial Council – Ontario and are dated March 31, 2013. In the amended submissions, the applicant purports to file a complaint to the Judicial Council – Ontario against Vice-chair Flaherty and the HRTO raising what he describes as policies concerning forced self-representation, the denial of a representative and the Tribunal’s role in mediation. The applicant’s submissions do not directly address the issues raised in the NOID and instead detail a complaint addressed to the Judicial Council – Ontario in connection with the adjudication of his complaint in Tribunal File No. 2009-04138-I. His complaint to the Judicial Council – Ontario includes the allegation that he was required to proceed without legal representation after the Human Rights Legal Support Centre (“HRLSC”) abandoned the file when he refused to accept their proposed resolution of the application, the allegation that the Vice-chair refused to permit one of his witnesses to act as his co-representative, and also includes the Vice-chair’s alleged bias or pre-judgment formed during a “failed in-Hearing mediation” which was allegedly carried into the hearing. I have considered his submissions set out in his complaint to the Judicial Council – Ontario to the extent that they appear to address issues raised in his Application to the Tribunal.

DECISION

6The doctrine of judicial immunity applies 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. The doctrine 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.

7The 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, including decisions made about the conduct of the hearing, with independence and without fear of consequences (see Cartier v. Nairn, 2009 HRTO 2208). In 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 to afford the parties natural justice or fairness may result in decisions being overturned on appeal or judicial review, it does not make the adjudicator or tribunal personally liable for such errors.

8In the circumstances of this case, all of the allegations made by the applicant in his Application about differential judicial consideration and evaluation of his Application in Tribunal File No. 2009-04138-I 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 interim preliminary or procedural decisions which are the subject of the present Application include decisions made by the Vice-chair concerning the facts and issues to be litigated in the Application against Carleton Condominium Corporation 91. Since all decisions affecting the applicant and about which he complains in his Application were adjudicative in nature and made by a Vice-chair of the HRTO exercising its statutory duties, they fall outside the jurisdiction of the Tribunal. The applicant’s complaint in his Application against the HRTO relates to the manner in which the Vice-chair adjudicated his application and is something which is protected by judicial immunity.

ORDER

9Based 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.