Soschin v. Canadian Judicial Council, 2013 HRTO 192

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alona Soschin

Applicant

-and-

Canadian Judicial Council

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: February 4, 2013

Citation: 2013 HRTO 192

Indexed as: Soschin v. Canadian Judicial Council

Introduction

1The applicant filed this Application on September 21, 2012, alleging that the Canadian Judicial Council (“CJC”) discriminated against her on the basis of place of origin, disability and sex by dismissing a complaint she made against a family court judge.

2Rule 13.2 of the Tribunal’s Rules of Procedure states that where it appears to the Tribunal that an Application is outside its jurisdiction, it shall, prior to sending the Application to the respondent, issue a Notice of Intention to Dismiss the Application. The Notice is only sent to the applicant, and requires the applicant to file written submissions.

3On November 13, 2012, the Tribunal Registrar sent a Notice of Intent to Dismiss (NOID) to the applicant that noted the Application appeared to be outside of the Tribunal’s jurisdiction. The NOID noted that the respondent was an arbitrator, adjudicator or judge. It stated that the Tribunal has held that it has no jurisdiction to hear applications against courts and tribunals based on the execution of adjudicative duties or decision-making because of the doctrine of judicial or adjudicative immunity. See Cartier v. Nairn, 2009 HRTO 2208, and Hazel v. Ainsworth Engineered Corp., 2009 HRTO 2180. The Tribunal invited the applicant to provide written submissions as to whether the Application was within the Tribunal’s jurisdiction. The applicant filed her submissions on December 10, 2012.

4The Tribunal has not yet delivered the Application to the respondent. The purpose of this Interim Decision is to address the NOID. While I have determined that the matter should not be dismissed at this stage, I have referred this matter for a Summary Hearing for the reasons that follow.

analysis

5In her submissions, the applicant notes that her Application was not made against the judge presiding in her family law case. Instead, the Application was made against the CJC for failing to properly deal with a complaint she filed against the family law judge. The applicant alleges that the CJC failed to properly assess the judge’s conduct in accordance with the principles set out in the Code. The applicant submits that the CJC provides a service to the public when it deals with complaints against judges. She argues that the principle of adjudicative immunity does not apply to CJC’s actions in carrying out its complaint, investigative and decision-making processes.

6An application will only be dismissed at a preliminary stage, before it is served on the respondents, if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. (See Morin c. Alliance de la function publique du Canada, 2008 HRTO 58, and Hotte v. Ontario (Finance), 2008 HRTO 63.)

7In my view, it is not “plain and obvious” that the doctrine of adjudicative immunity applies to the CJC’s decision-making in relation to complaints against its members. However, having reviewed the applicant’s materials, I find that it is appropriate that the Application proceed to a Summary Hearing:

8Rules 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.

9Details 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.

10The Tribunal’s Registrar will schedule a half-day Summary Hearing by teleconference. The applicant will proceed first and should be prepared to address whether the doctrine of adjudicative immunity may apply to in the circumstances of this case and whether what she alleges may reasonably be considered to amount to a Code violation.

11If 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.

DIRECTION

12This Application has not been served on the respondent. In order to permit the respondent to participate in the Summary Hearing, a copy of the Application, all materials and correspondence between the applicant and the Tribunal regarding the NOID letter, and this Interim Decision will be sent to the respondent. The respondent is not required to file a response at this time. The respondent must write to the Tribunal, with a copy to the applicant, within 14 days of the date of this Interim Decision, providing contact information for the person to whom documents should be delivered.

13The Registrar will schedule a half-day summary hearing by conference call. 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.

14I am not seized of this matter.