Juchang Tao v. Small Claims Court of Toronto, 2013 HRTO 25

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Juchang Tao

Applicant

-and-

Small Claims Court of Toronto

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: January 7, 2013

Citation: 2013 HRTO 25

Indexed as: Tao v. Small Claims Court of Toronto

APPEARANCES

Juchang Tao, Applicant

Self-represented

Introduction

1This is an Application filed on September 27, 2012 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to services because of race.

2In the Application, the applicant states that an unnamed judge of the Small Claims Court of Toronto rendered an unfair decision in a matter before the Small Claims Court, Court file number SC-10-00103451-0000. The documents filed along with the Application indicate that the applicant was the plaintiff in the small claims matter, which the Court dismissed in an endorsement dated March 28, 2012.

3On November 29, 2012, the Tribunal issued a Notice of Intent to Dismiss Application (“NOID”) because some or all of the Application appears to be outside of the Tribunal’s jurisdiction. Specifically, the NOID noted that the respondent is an arbitrator, adjudicator or judge and that the Tribunal has stated 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. The Tribunal directed the applicant to provide written submissions regarding this jurisdiction issue by December 19, 2012. The applicant filed very limited submissions on December 10, 2012 opposing dismissal.

ANALYSIS AND DECISION

4At this preliminary stage in the proceeding, the Tribunal will dismiss an application only if it is “plain and obvious” that it is outside the Tribunal’s jurisdiction. I find that it is plain and obvious that the judge’s decision is outside the Tribunal’s jurisdiction because of the doctrine of judicial immunity.

5In Cartier v. Nairn, 2009 HRTO 2208, the Tribunal described the doctrine of judicial immunity as follows, at paragraphs 12-15:

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.

The principle of judicial immunity has been applied to protect judicial actors from human rights complaints. In Taylor v. Canada (Attorney General) 2000 CanLII 17120 (FCA), (2000), 184 D.L.R. (4th) 706 (leave ref’d [2000] No. 213), the Federal Court of Appeal held that the Canadian Human Rights Commission and Tribunal lacked jurisdiction over a complaint that a judge of the Ontario Court General Division had discriminated against a courtroom observer who was excluded from the courtroom on the basis of his religious head covering. In Taylor, Sexton J.A. for the Federal Court of Appeal explained why judicial immunity was so important to judicial independence:

…[T]he most serious consequence of permitting judges to be sued for their decisions is that judicial independence would be severely compromised. If judges recognized that they could be brought to account for their decisions, their decisions might not be based on a dispassionate appreciation of the facts and law related to the dispute. Rather, they might be tempered by thoughts of which party would be more likely to bring an action if they were disappointed by the result, or by thoughts of whether a ground-breaking but just approach to a difficult legal problem might be later impugned in an action for damages against that judge, all of which would be raised by the mere threat of litigation. In Lord Denning's words, a judge would "turn the pages of his books with trembling fingers, asking himself: “If I do this, shall I be liable in damages?”

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.S.B.C. 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.

6The decision of the Small Claims Court judge comes squarely within the doctrine of judicial immunity and it is plain and obvious that the Tribunal has no jurisdiction to hear this Application.

7The Application is dismissed.