Guydos v. Workplace Safety and Insurance Appeals Tribunal, 2013 HRTO 1371

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Deborah Guydos Applicant

-and-

Workplace Safety and Insurance Appeals Tribunal Respondent

DECISION

Adjudicator: Sheri D. Price Date: August 9, 2013 Citation: 2013 HRTO 1371 Indexed as: Guydos v. Workplace Safety and Insurance Appeals Tribunal

APPEARANCES

Deborah Guydos, Applicant Self-represented

Workplace Safety and Insurance Appeals Tribunal, Respondent Ana Rodriguez-Garcia, Counsel

INTRODUCTION

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In September 2004, the Workplace Safety and Insurance Board (“WSIB”) denied the applicant’s claim for certain benefits under the Workplace Safety and Insurance Act, 1997 (“WSIA”). The applicant appealed the WSIB’s decision to the Workplace Safety and Insurance Appeals Tribunal (“WSIAT”). On June 25, 2009, WSIAT issued a decision, dismissing the applicant’s appeal.

3On or about June 28, 2010, the applicant filed this Application with the Tribunal, alleging that the respondent tribunal discriminated against her based on disability, sex, and family status, and reprised against her, contrary to the Code.

4In an Interim decision dated March 8, 2011, 2011 HRTO 479, the Tribunal dismissed all but one of the allegations in the Application on the basis that it did not have jurisdiction to deal with them. The only allegation that was not dismissed was the applicant’s allegation that the respondent tribunal discriminated against her by failing to offer to pay for child care in order to allow the applicant to attend a hearing before it. However, the Tribunal decided to defer consideration of that allegation, pending reconsideration of the June 25, 2009 decision by WSIAT.

5After WSIAT denied the applicant’s reconsideration request, the Tribunal reactivated the human rights Application, at the applicant’s request: 2012 HRTO 1944. At the same time, the Tribunal directed that a summary hearing be convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed on the basis that there was no reasonable prospect that the Application would succeed.

6The summary hearing was held by teleconference on April 15, 2013. During the summary hearing, the applicant was given an opportunity to explain how she could establish that the respondent tribunal’s failure to offer to pay for child care in order to allow her to attend a hearing before it was discriminatory, if the Application were to proceed.

7For the reasons that follow, I find that the Application is barred because of the common law doctrine of judicial immunity. As a result, the Application has no reasonable prospect of success. It is dismissed accordingly.

BACKGROUND

8As noted above, the applicant appealed to the respondent, WSIAT, from a September 2004 decision of the WSIB, denying her claim for certain benefits under the WSIA.

9During the relevant time frame, the applicant was residing in British Columbia with her four children.

10The applicant submits that, on a number of occasions before her case was heard by WSIAT, she advised the respondent tribunal that it would be difficult for her to attend an in-person hearing in Ontario, where WSIAT hearings are ordinarily held, because of her financial circumstances and parental responsibilities.

11Specifically, on February 23, 2006, before her WSIAT appeal had been scheduled, the applicant submitted a “Hearing Expense Claim” form to WSIAT, seeking $432.00 to cover certain transportation, hotel and meal expenses that the applicant would have to incur to attend the hearing of her appeal in Ontario. In addition, on the “Comments” section of the Hearing Expense Claim form, the applicant indicated. “I will need to hire a babysitter. Approx $100. I am requesting the funds prior to the hearing to assist with expenses.”

12In addition, on January 29, 2006 or 2007 (the letter is dated 2006 but it seems that it may have actually been written in 2007), the applicant wrote to WSIAT, stating that she would “need assistance to come to Toronto for the hearing.”

13On February 5, 2007, the applicant’s counsel at the time elaborated on the type of assistance the applicant required in order to attend the hearing, as follows:

With respect to your question about the transportation issue, I advise as follows. My client is presently resident in British Columbia. Her comments about assistance in attending the hearing relate to the distance, time and expense in traveling from her present location to the hearing. In one of her earlier letters to me, she indicated that there was the possibility of arranging the hearing by tele-conference or video. Please advise whether these facilities are or might be available for the hearing.

14By way of response, WSIAT’s registrar’s office advised that the applicant’s request to participate in the appeal hearing by way of teleconference would have to be referred to a Vice-chair or panel of WSIAT for determination.

15On February 7, 2008, the applicant submitted some medical documentation relevant to her case to WSIAT. In her cover letter, the applicant again indicated that she could not attend a hearing in Ontario because she could not afford to do so “and because of family responsibilities.”

16At some point prior to August 2008, the applicant’s WSIAT appeal was scheduled to take place in Toronto on October 21, 2008.

17On August 8, 2008, the applicant’s former employer, Canada Post, a party to the hearing before WSIAT, wrote to WSIAT opposing the applicant’s request that she be permitted to participate in the hearing by teleconference. It took the position that the applicant ought to be required to attend the hearing in person as there were credibility issues to be determined.

18On September 19, 2008, the WSIAT panel assigned to hear the applicant’s case issued a written ruling that the applicant would be permitted to attend the October 21, 2008 hearing by teleconference and that any further objections to the hearing process would be dealt with as a preliminary matter at the outset of the October 21, 2008 hearing.

19On October 21, 2008, the WSIAT panel convened the hearing of the applicant’s appeal. The applicant participated by teleconference. The applicant’s former employer and its counsel attended in person.

20At the outset of the October 21, 2008 hearing, the WSIAT panel asked the applicant to explain what obstacles prevented her from attending the hearing in person. According to a transcript of the hearing, which the applicant confirms is accurate with respect to this issue, the applicant explained that she was a single parent and that she did not have anyone to take care of her children. In addition, the applicant explained that there was an affordability issue and that she did not have the money to travel to Toronto. When the panel asked if it would assist the applicant if the Tribunal were to pay her expenses to travel to Toronto, the applicant indicated that there would still be an issue of finding someone to take care of her children, who at the time were 17, 15, 12 and 7 years old, respectively. The applicant explained that she did not know anyone in British Columbia who could take care of her children for “that length of time”. (The hearing was expected to take more than one day and ended up taking three days).

21During the summary hearing, the applicant pointed out that, although the WSIAT panel inquired as to whether covering the applicant’s travel expenses would assist her in attending the hearing in person, it never offered to cover her child care expenses. The applicant submits that if the panel had done this, she would have attempted to find someone to look after her children while she attended the hearing in Toronto.

22Ultimately, the October 21, 2008 hearing was adjourned and the hearing was scheduled to reconvene on February 24, 25 and 26, 2009, with the applicant continuing to participate by phone.

23The WSIAT panel’s decision, dismissing the applicant’s case, was issued in June 2009.

24The applicant contends that WSIAT’s failure to offer to pay for child care in order to allow the applicant to attend her appeal hearing in person was discriminatory based on family status and disability. Because the respondent tribunal failed to offer to pay for her child care, the applicant submits that she had no option but to participate in her WSIAT appeal by teleconference. This, the applicant submits, deprived her of a fair hearing. In particular, the applicant submits that WSIAT denied her claim for WSIA benefits based on certain adverse credibility findings it made against the applicant. The applicant argues that these adverse findings might not have been made if she had testified at the hearing in person, instead of over the phone. The applicant contends that, instead of having the applicant participate in her WSIAT hearing by teleconference, the respondent tribunal ought to have offered to pay for the applicant’s child care so that the applicant could attend the hearing in person. The applicant submits that the respondent’s duty to accommodate her family status required this.

25The applicant submits that the prohibited ground of “disability” also comes into play because, according to a medical report submitted at the hearing, her own disability(ies) are exacerbated by her family responsibilities. In addition, the applicant points out that three of her four children have disabilities and corresponding disability-related needs.

26For its part, the respondent submits that the Application has no reasonable prospect of success because the treatment the applicant complains of was not “with respect to services” within the meaning of s.1 of the Code. Alternatively, the respondent submits that the common law doctrine of judicial immunity insulates it from the Application, which essentially seeks to challenge an adjudicative decision made by the WSIAT panel assigned to decide the applicant’s WSIA appeal. Finally, the respondent submits that the Application has no reasonable prospect of success because the applicant has no reasonable prospect of establishing that she was disadvantaged by the WSIAT panel’s decision to permit her to participate in the hearing by telephone, which would be required in order for a finding of discrimination to be made.

ANALYSIS AND DECISION

27Although it is not clear that the Code ever requires service-providers to pay for child care for those accessing their services, it is not necessary for me to determine this issue or the other issues raised by the parties in order to determine whether the Application has any reasonable prospect of success. This is because, for the reasons that follow, I find that the applicant’s discrimination claim is barred by the common law doctrine of judicial immunity.

28In order to succeed in any discrimination claim, an applicant must be able to point to some disadvantage that he or she has experienced as a result of the respondent’s alleged discriminatory actions.

29In this case, the applicant contends that she was disadvantaged by the WSIAT panel’s decision that it was appropriate to have the applicant participate in the hearing of her WSIA appeal by teleconference. The respondent submits, and I agree, that the doctrine of judicial immunity prevents the applicant from pursuing a human rights Application based on the panel’s decision in this regard.

30The common law doctrine of judicial immunity prohibits legal proceedings against judicial and quasi-judicial actors that 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: Cartier v Nairn, 2009 HRTO 2208, at para. 12, and the cases cited therein at para. 13 to 19.

31Judicial immunity applies even where a dissatisfied party alleges that the adjudicator did not follow the rules of natural justice: Lemieux v. Howe, 2010 HRTO 1596 at para. 10 and 11; Vanhelvoort v. Ontario Labour Relations Board, 2011 HRTO 1185; Kogan v. Human Rights Tribunal of Ontario, 2011 HRTO 1486. Errors made in a judicial capacity may be corrected on appeal or judicial review, as the case may be, but not by civil actions brought against the adjudicator: Baryluk (Wyrd Sisters) v. Campbell, 2008 CanLII 55134 at para. 25, as cited in Lemiex, above; Agnew v. Ontario Association of Architects, (1987), 1987 CanLII 4030 (ON HCJ), 64 O.R. (2d) 8 (Div. Ct.) at p. 28, as cited in Cartier, above, at para. 17; Tsai v. Klug, 2005 CanLII 19788 (ON SC) at paras. 7-8, upheld at 2006 CanLII 4942 (ON CA).

32In this case, the WSIAT panel tasked with hearing the applicant’s appeal under the WSIA determined that it was appropriate to permit the applicant to participate in the hearing by teleconference. In so doing, the panel was clearly exercising its functions as a quasi-judicial decision-maker. The doctrine of judicial immunity prevents the applicant from pursuing a human rights Application based on a procedural ruling made by WSIAT in the course of exercising its quasi-judicial functions.

33The Application therefore has no reasonable prospect of success and is dismissed accordingly.