Pillner v. Landlord and Tenant Board, 2013 HRTO 1946

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dearon Pillner

Applicant

-and-

Landlord and Tenant Board

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: November 25, 2013

Citation: 2013 HRTO 1946

Indexed as: Pillner v. Landlord and Tenant Board

WRITTEN SUBMISSIONS

Dearon Pillner, Applicant

Leonard Reece, Representative

INTRODUCTION

1This Interim Decision provides further direction regarding this Application. The Application was filed on October 28, 2013. It was filed by Leonard Reece from the Young Advocates Youth Organization of Ontario on behalf of Dearon Pillner, the applicant. The Application alleged discrimination with respect to housing because of race and colour. The Application named the Landlord and Tenant Board as the respondent. The Application indicates that Mr. Reece and Mr. Pillner attended a mediation session at the Landlord and Tenant Board on July 25, 2013 and that during the session the landlord's counsel started asking the applicant questions. Mr. Reece objected to this. The mediator said that it was okay for counsel to ask the questions. According to the Application Mr. Reece then left the mediation session leaving the applicant to participate on his own. According to the Application, Mr. Reece sent a letter of complaint to the mediator’s manager. The manager wrote back to him to say that it appeared that the mediation had proceeded in accordance with the Board’s mediation guidelines.

2The Application states that the applicant is a black man but does not identify any specific allegation relating to the applicant's race or colour.

3On November 4, 2013 the Tribunal issued a Notice of Intent to Dismiss because it appeared that the Tribunal may not have jurisdiction to deal with the Application. Two reasons that the Tribunal may not have jurisdiction were identified. First it appeared that the respondent is an arbitrator, adjudicator or judge who would be entitled to adjudicative immunity. Second the Application did not identify any specific act of discrimination within the meaning of the Code. The applicant was invited to make submissions on these points so that the Tribunal could determine if it has jurisdiction to deal with the Application. The Application has not been served on the respondent.

4Submissions were received from Mr. Reece on November 10, 2013. The submissions state that the respondents are the Landlord and Tenant Board mediator and the mediator’s manager and that the Landlord and Tenant Board is not a respondent. Mr. Reece submits that the mediator and the mediator's manager are not arbitrators, adjudicators or judges and that the doctrine of adjudicator immunity would therefore not apply. Mr. Reece alleges that during the mediation process the mediator indicated “black people always complain when they don't get their way”.

Identification of the Respondents

5The reason that the Tribunal identified the Landlord and Tenant Board as the respondent to the Application is that the Landlord and Tenant Board is identified as the respondent in the Application. The Application did not identify either the mediator or the mediator's manager as respondents. If the applicant wishes to bring an Application against the mediator and the mediator's manager and not against the Landlord and Tenant Board, the applicant must file a request to amend the Application.

Immunity in Regard to the Mediator

6As noted in the Tribunal’s Notice of Intent to Dismiss, the Tribunal has found that Applications cannot be brought against arbitrators, adjudicators or judges because of the doctrine of judicial or adjudicative immunity. That doctrine was described and explained in the Tribunal’s decision in Cartier v. Nairn, 2009 HRTO 2208 at paragraphs 12 – 19:

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.

Recently, the Supreme Court of British Columbia revisited the question of whether judicial immunity protects judicial actors from complaints that they have violated human rights legislation. In Gonzalez v. Ministry of Attorney General, 2009 BCSC 639, the Court upheld a decision of the British Columbia Human Rights Tribunal in which it found that it lacked jurisdiction to deal with part of a complaint alleging discrimination by a provincial court judge on the basis of disability in respect of employment and services. In that case, the judge had been accused of discriminating against legal counsel in a hearing under the Child Family and Community Service Act, R. 1996, c.46, when he made comments about how accommodation of her physical disability was prolonging the proceedings. The basis for the Tribunal’s decision that it did not have jurisdiction in that matter was that the judge was protected from human rights complaints by judicial immunity.

The British Columbia Court reached its conclusion that the doctrine of judicial immunity protects judicial actors from complaints under human rights legislation cognizant of the public importance and quasi-constitutional status of human rights legislation:

Whether he was wrong or right, committed a human rights violation or simply acted inappropriately, the presiding judge said these things in the course of carrying out his legal duties.

There is no question that human rights legislation is quasi-constitutional and should be given a broad and liberal application. However, judicial immunity is also a constitutional principle and, as the Supreme Court of Canada held in Morier, the immunity of judges must be preserved even when it is alleged they have violated human rights. Judicial immunity is a necessary adjunct to the independence of the judiciary. Any erosion of this principle causes more detriment to the public’s confidence in the judiciary than would result from insulating any particular judge from civil liability for wrongful acts in the course of his duties. As Lord Bridge of Harwich said in McC v. Mullan, [1984] 3 ALL E.R. 908 at p. 916:

The principle underlying this rule is clear. If one judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety-nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction.

Moreover, the concept of judicial immunity has been held to protect not only judges from legal proceedings based on the execution of their duties as judicial actors, but also tribunals and other statutory-decision makers. In Agnew v. Ontario Association of Architects (1987), 1987 CanLII 4030 (ON HCJ), 64 O.R. (2d) 8 (Div. Ct.) at p. 14, Campbell J. of the Ontario Divisional Court held that judicial immunity applies not only to judges, but also to members of administrative tribunals. In that case, there had been an attempt to subpoena members of a committee of the Ontario Association of Architects about a determination they had made pursuant to decision-making authority accorded them under the Architects Act, 1984, S.O. 1984, c. 12:

The authorities do not make it clear whether this general rule applies equally to members of administrative tribunals. In logic, there is no reason why it should not. The mischief of penetrating the decision process of a tribunal member is exactly the same as the mischief of penetrating the decision process of a judge.

Judicial immunity has also been extended to members of the Immigration and Refugee Board, Ermina v. Canada (Minister of Citizenship and Immigration (1998), 1998 CanLII 8969 (FC), 167 D.L.R. (4th) 764 (F.C.); the Law Society of Upper Canada in respect of its decision-making disciplinary processes and investigative functions, Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; and members of provincial commissions of public inquiry, Morier v. Rivard, 1985 CanLII 26 (SCC), [1985] 2 S.C.R. 716.

7Mr. Reece is correct that the mediator and the mediator's manager are not arbitrators, adjudicators or judges. However the tribunal has found that the principle of adjudicator immunity may also extend to mediators: Hazel v. Ainsworth Engineered, 2009 HRTO 2180 and Karzi v. Jones, 2010 HRTO 982.

8If the applicant wishes to pursue an amended Application against the Landlord and Tenant Board mediator, he must explain why the doctrine of immunity would not apply to the circumstances of the allegations about the mediation.

The Mediator’s Manager

9The allegation against the mediator’s manager appears to be that the manager felt that the mediation had proceeded in a way consistent with the Board’s mediation guidelines. This is not an allegation that seems to raise the applicant’s Code-protected rights.

10If the applicant wishes to pursue an amended Application against the mediator’s manager, he must provide details of the allegations in regard to the mediator's manager and explained how the allegations relate to the applicant's Code-protected rights.

Status of the Applicant's Representative

11The Tribunal’s Rules restrict who may appear as a representative of an applicant or respondent. The Social Justice Tribunal of Ontario (SJTO), which includes this Tribunal, has issued a Practice Direction on Representation which states in part as follows:

A party may also choose to appoint another person to represent him or her in SJTO proceedings.

The representative may be:

· a lawyer, licensed by the Law Society of Upper Canada (LSUC),

· a paralegal, licensed by the LSUC, or

· an unlicensed person, if that person falls within a category of persons the LSUC has exempted from its licensing requirements.

A person who is not licensed, whose license is suspended or who is not in an exempted category will not be permitted to act as a representative in SJTO proceedings.

licensed representative

A licensed representative is a lawyer or paralegal licensed by the LSUC. A licensed representative must be in good standing with the LSUC and must provide his or her license number to the Tribunal.

There are Rules of Conduct established by the LSUC that apply to lawyers and paralegals. They are available on the website of the LSUC.

unlicensed representatives

An unlicensed person may represent a party in proceedings before the SJTO if that person falls within the specific licensing exemptions established by the LSUC.

A person who is not licensed may be asked by the SJTO to identify the LSUC exemption category to which he or she belongs.

The current exemptions permit the following unlicensed persons, among others, to act as a representative:

· an unpaid friend or neighbour who is not in the business of providing legal services, who does not receive compensation, and who provides legal services in no more than 3 matters in a year

· an unpaid family member who is not in the business of providing legal services and who does not receive compensation

· a member of Provincial Parliament (MPP) or the Constituency assistant working in the MPP's office,

· an employee or volunteer from a trade union or appropriate organization,

· students, volunteers and employees of legal clinics funded through Legal Aid Ontario,

· individuals employed by a single employer, for example, a municipal prosecutor or employee of a corporation appearing on behalf of the corporation

For a complete list of approved exemptions please see the LSUC's website.

A person who is not licensed and who is not exempt from licensing requirements will be not permitted to act as a representative in an SJTO proceeding. This would include:

· a friend, neighbour or family member who expects to/or receives compensation in return for acting as a representative,

· an unpaid friend or neighbour who has already provided legal services in respect of three matters in that year

· subject to limited exceptions, a member of a board of directors of a corporation who is not an employee of the corporation

12If the applicant wishes to have Leonard Reece or the Young Advocates Youth Organization of Ontario represent him, he must indicate whether his representative is licensed and, if not, he must specify what exemption applies to allow the representative to represent the applicant.

DIRECTION

13If the applicant wishes to pursue and Application against the Landlord and Tenant Board mediator and the mediator’s manager and not against the Landlord and Tenant Board, the applicant must file a request to amend the Application.

14If he wishes to pursue an Application against the Landlord and Tenant Board mediator, he must indicate why the doctrine of immunity does not apply to protect the mediator from having an Application brought against her.

15If the applicant wishes to pursue an Application against the mediator’s manager, he must provide details of the allegations in regard to the mediator's manager and explained how the allegations relate to the applicant's Code-protected rights.

16If the applicant wishes to be represented by Leonard Reece or the Young Advocates Youth Organization of Ontario, he must specify whether his representative is a licensed representative. If the representative is not licensed the applicant must specify what exemption applies to allow the representative to represent the applicant.

17When the applicant's submissions on these issues has been received, the Tribunal will determine if it has jurisdiction to deal with any or all of the allegations in the Application. If the Tribunal determines that it does not have jurisdiction to deal with some or all of the allegations, the Application may be dismissed in whole or in part.

18The applicant must provide his submissions by December 13, 2013. If submissions are not received by that date, the Application may be dismissed as abandoned.