Taucar v. University of Western Ontario, 2013 HRTO 597

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Haruyo Taucar Applicant

-and-

The University of Western Ontario, Kenneth Swan and Kenneth P. Swan Arbitration Ltd. Respondents

DECISION

Adjudicator: Jo-Anne Pickel Date: April 10, 2013 Citation: 2013 HRTO 597 Indexed as: Taucar v. University of Western Ontario

APPEARANCES

Haruyo Taucar, Applicant Christopher E. Taucar, Counsel

Kenneth Swan and Kenneth P. Swan Arbitration Ltd., Respondents David C. Moore, Counsel

University of Western Ontario, Respondent Barry Brown, Counsel

Introduction

1The applicant has filed two Applications with the Tribunal which were consolidated by Interim Decision 2011 HRTO 550, dated March 18, 2011. In her first Application (2010-05429-I), the applicant alleged that the University of Western Ontario (the “University”) failed to accommodate her disability and reprised against her contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). In the present Application, the applicant alleges that Kenneth Swan and Kenneth P. Swan Arbitration Ltd. (the “Swan respondents”) discriminated against her in the preparation of a report into a harassment and discrimination complaint she had filed under her collective agreement (the “Swan report”). The applicant alleges that Mr. Swan discriminated against her by conducting an unfair investigation of her complaint. In particular, she alleges that Mr. Swan discounted her credibility and evidence due to his failure to properly take into account distinct Japanese patterns of communication and behaviour. The applicant also alleges that the University discriminated against her by accepting the allegedly discriminatory conclusions in Mr. Swan’s report.

2By Case Assessment Direction (“CAD”) dated July 27, 2012, the Tribunal directed that the present Application be scheduled for a summary hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The parties were directed to provide submissions on whether the Application has a reasonable prospect of success and whether the doctrine of judicial/adjudicative immunity applies in this case.

3The CAD directed that in the event that both Applications remain outstanding following mediation (2010-05429-I) and the summary hearing process (2010-07219-I), that the files would remain consolidated.

4The parties in this case have filed very comprehensive and voluminous materials. They also have made very thorough legal submissions on the issues identified in the Tribunal’s Case Assessment Direction. After carefully reviewing and considering all materials filed by the parties and their oral submissions, I find that that the Swan respondents are immune from the application of the Code by operation of the doctrine of adjudicative immunity. In addition, I find that the applicant’s claims against the University must be dismissed as having no reasonable prospect of success.

The applicant’s Application

5In her Application, the applicant alleges that Mr. Swan discriminated against her by preparing a report that was discriminatory on the grounds of race, ancestry, place of origin and/or ethnic origin. She alleges that this alleged discriminatory report marginalized her as a member of a visible minority and denied her “the right to equal justice and to be treated fairly in a hearing”. In her Application, she states:

Ms. Swan’s report was discriminatory in that the intention and/or effect of it was that I was not to be believed because I was Japanese and followed the norms of Japanese culture, which the Investigator thought or treated it to be as not rational (as seen through his own Western stereotypes and pre-conceptions of rational behaviour).

I was not to be believed because in Mr. Swan’s eyes, and one following Japanese culture is not to be believed, because more forceful or frequent complaints of the accused respondent’s behaviour were not made. However, one needed to understand Japanese culture to explain why it was not done, which was exactly the reason why I did not in fact do so.

6Among other things, the applicant alleges that Mr. Swan discredited her evidence because of discriminatory assumptions he made about her conduct towards her colleague. For example, she alleges that Mr. Swan failed to recognize the role of Japanese cultural norms in explaining why the conflict between her and her colleague was not apparent on the face of their written exchanges or their personal interactions. She claims that Mr. Swan failed to recognize the role of her culture in explaining why she challenged her colleague’s behaviour at times but also sought to rely on Japanese communication norms to explain why she failed to raise any concerns about her colleague’s behaviour at other times. The applicant also claims that Mr. Swan failed to recognize the importance of differences in age and seniority in Japanese culture by referring to the difference in age and seniority between the applicant and her colleague as being only “slight” and therefore of little significance. In addition, the applicant alleges that Mr. Swan failed to properly understand the Japanese custom of gift giving by misconstruing the relevance of an exchange of gifts between the applicant and her colleague. Overall, the applicant alleges that Mr. Swan discriminated against her in the assessment of her credibility and in reaching conclusions in his report that were informed by alleged discriminatory assumptions with respect to Japanese cultural norms.

7The applicant alleges that the University discriminated against her by relying upon Mr. Swan’s allegedly discriminatory report.

case management issues dealt with on January 4, 2013

8The summary hearing was initially scheduled for January 4, 2013. However, due to a delay in the filing of materials arising in part from the fact that they were due immediately before the holiday season, the parties consented to proceed as follows:

a. The summary hearing was adjourned and rescheduled to January 25, 2013;

b. The Tribunal would consider all of the materials filed by the parties;

c. The applicant would have the opportunity to file full written submissions and authorities to reply to the responding materials which were filed late by the Swan respondents; and

d. The Swan respondents would have an opportunity to file brief surreply submissions if the applicant raised any new issues in her reply submissions.

9The Tribunal and the parties used the January 4, 2013 teleconference as a case management meeting to discuss the materials filed with the Tribunal. In this teleconference, counsel for the Swan respondents objected to a proposed amendment to the Application and the statements of intended expert evidence that the applicant wished to rely upon in the summary hearing.

10Among other things, the proposed amendment would amend the Application to expressly allege that Mr. Swan committed a number of errors in preparing his report including exceeding his jurisdiction, breaching natural justice and acting in bad faith. I advised the parties that I was prepared to permit the applicant to rely upon the proposed amendment for purposes of the summary hearing. However, in the teleconference on January 4, 2013, and once again at the outset of the summary hearing on January 25, 2013, I made clear that the issue of whether the Tribunal would permit the applicant to amend the Application would be determined at a later date if the Application proceeded to a hearing on the merits.

11On the issue of the proposed expert witness statements, I advised the parties that I was prepared to consider these statements for the purposes of the summary hearing. However, I advised the parties that any decision as to the admissibility of the proposed experts’ statements would be decided by the Vice-chair hearing the Application if it proceeded to a hearing on the merits.

factual background

The applicant’s discrimination and harassment complaint

12The applicant self-identifies as being of Japanese origin. She began teaching Japanese courses at the University of Western Ontario in the 2004-2005 academic year. On or around July 6, 2009, the applicant made a discrimination and harassment complaint against one of her colleagues under the Discrimination and Harassment provision of the collective agreement negotiated between the University and the University of Western Ontario Faculty Association (the “Faculty Association”). In her complaint, the applicant alleged that she was harassed and discriminated against by her colleague over a period of years. In particular, she alleged that her colleague, who is also of Japanese origin, used Japanese culture to harass and dominate her in various ways.

Dispute resolution process for complaint

13The collective agreement includes a provision that prohibits discrimination and harassment. This provision includes a detailed dispute resolution process which functions as an alternate to the grievance process when faculty members allege discrimination and harassment by fellow faculty members. The Ontario Labour Relations Board described this alternate dispute resolution process in its decision with respect to a duty of fair representation complaint filed by the applicant against the Faculty Association in regards to its handling of her complaint. See Taucar v. University of Western Ontario Faculty Association, 2010 CanLII 74589 (ON LRB) at paras. 4-8. As noted by the Board, the Faculty Association has a policy not to file grievances in cases involving allegations of discrimination and harassment between its members. As a result of this policy, the Faculty Association refused to file a grievance on her behalf and referred her to the University’s Office of Equity and Human Rights Services to access the alternate dispute resolution process provided for under the collective agreement’s Discrimination and Harassment provision.

14Among other things, this alternate process provides that the University would retain an external investigator to determine whether the complainant has made out a prima facie case of discrimination or harassment appropriate for determination by a Panel of Inquiry. If so, the complaint is referred to a three-person Panel of Inquiry composed of one person chosen by the Faculty Association, one person chosen by the University and a third person chosen from a list of external chairs mutually agreed upon by the Faculty Association and the University which is included at Appendix G of the collective agreement.

15The applicant’s complaint was referred to an External Investigator in accordance with the process described above. After a preliminary investigation, the External Investigator concluded that the applicant had led sufficient evidence to establish a prima facie case of discrimination and/or harassment.

16The next step under the discrimination and harassment provision would have been for the complaint to be referred to a Panel of Inquiry. However, by Memorandum of Agreement dated May 19, 2010, the University, the Faculty Association, the applicant and her colleague agreed to substitute an alternate process to deal with the complaint. This alternate process was put in place to respond to concerns that the applicant had raised. The applicant had claimed that there was a reasonable apprehension of bias with respect to the Panel of Inquiry process as she considered both the Faculty Association and the University to be adverse in interest to her. As well, according to the materials filed by the applicant, she believed the alternate procedure would be more expeditious, timely and less traumatic for her in light of certain health challenges she was facing.

17Accordingly, the parties to the Memorandum of Agreement agreed to substitute for the three-person Panel of Inquiry a sole investigator chosen from the list of external chairs included at Appendix G of the collective agreement. The Memorandum of Agreement provided that the sole investigator would conduct a full investigation of the applicant’s complaint as well as an amended complaint she had filed. The Memorandum of Agreement provided that the sole investigator would file “a written report of the findings of fact pertaining to the Complaint” with the University, the Faculty Association, the applicant and her colleague.

18The Memorandum of Agreement provided that, upon receipt of the report, the University would make a determination with reasons as to whether the complaint was upheld. Each of the Faculty Association, the applicant and her colleague reserved all grievance rights in respect of the University’s determination in accordance with the collective agreement. Finally, the Memorandum of Agreement stated that it replaced article 11 of the Discrimination and Harassment provision of the collective agreement, the article which set out the Panel of Inquiry process. However, the Memorandum of Agreement stated that all other provisions of the Discrimination and Harassment provision would remain in effect with necessary modifications to refer to the sole investigator and to reflect the terms of the Memorandum of Agreement.

The Swan inquiry

19The Faculty Association and the University chose Mr. Swan from the list of external chairs in Appendix G of the collective agreement to be the sole investigator under the Memorandum of Agreement. Mr. Swan, like the other external chairs on the list, has an extensive practice as a neutral grievance arbitrator.

20Mr. Swan conducted an inquiry and produced a report dated September 13, 2010. In his report, Mr. Swan made a number of relevant comments regarding his powers and the process he followed in preparing his report. At the outset of his report, Mr. Swan commented that the Memorandum of Agreement created a kind of “jurisdictional chimera, a tribunal with the responsibilities of a Panel of Inquiry but armed only with the tools of an investigator.” However, he noted that he nevertheless was able to carry out his unusual assignment. As Mr. Swan noted in his report, at the request of the applicant and with the consent of the respondent, he administered a form of solemn affirmation to the applicant and her colleague, who were the only witnesses to give testimony before him. He also received comprehensive written documentary evidence and submissions. Although the witnesses were not subject to cross-examination, Mr. Swan stated in his report that he interviewed both individual parties and asked them to provide further information as needed. Mr. Swan also noted in his report that he received voluminous written documentary evidence and submissions from the parties’ counsel.

21Based on his report, it appears that Mr. Swan followed a simplified procedure that served as a substitute to the more formal Panel of Inquiry process that typically would involve a full adversarial hearing. From the parties’ written submissions to Mr. Swan, it is clear that they considered him to be “standing in the shoes” of a Panel of Inquiry.

22At the conclusion of his report, Mr. Swan noted certain challenges related to the parameters of his role. He recognized that the Memorandum of Agreement required him to make “findings of fact” and reserved to the University the authority to make a finding “that the complaint is or is not upheld”. However, Mr. Swan commented that it was impossible for him to decide which facts were pertinent to the complaint without making at least some determination as to what constitutes discrimination and harassment.

23He stated the following at pp. 85 and 86 of his report:

It appears that the immediate parties to this dispute take opposite positions as to whether I have jurisdiction to determine whether there has been discrimination and/or harassment under the collective agreement. Neither of the collective agreement parties has intervened to attempt to resolve what their collective agreement means in this regard.

On the face of it, however, the procedure requires me to find facts, and reserves to the Employer under Article 12 of the procedure the authority to make a finding “that the complaint is or is not upheld”.

The fact finding process assigned to me is, as I have already discussed, a difficult assignment in the absence of any interpretation of the collective agreement definitions of discrimination and harassment. It is impossible to decide which facts are pertinent to a complaint of discrimination and harassment without making at least some determination as to what constitutes discrimination and harassment, and while I cannot determine whether or not the complaint should be upheld, I think I would be remiss in not stating some conclusions about what those provisions mean so as to place my finding of fact in some context.

24Ultimately, Mr. Swan found that there was insufficient evidence to support the discrimination and harassment allegations set out in the complaint. At the conclusion of his report, he summarized his findings as follows:

What seems clear is that the Complainant took an immediate dislike to the Respondent, and characterized her from the outset as scheming, manipulative and dishonest. She asserted that for cultural reasons, she then suppressed her opinion of her colleague, but continued to view all of her conduct through the lens of her initial impression. As discussed above, that led her to regard some conduct that was merely inadvertence, some conduct that was demonstrably collegial, and some conduct that was apparently generous, as part of an ongoing manipulation. The evidence as a whole does not support this view of events.

25By letter dated September 22, 2010, the University advised the applicant and her colleague that, following its review of the complaint and the Swan report, it concluded that there was no evidence to support a claim of harassment or discrimination. The University stated that the facts contained in the report completely exonerated the applicant’s colleague of the claims of harassment and discrimination made against her. Accordingly, the University advised that it would take no disciplinary measures against the applicant’s colleague.

Procedural History and Related Litigation

26The applicant filed this Application with the Tribunal on October 26, 2010.

27Shortly before filing this Application, the applicant filed an application for judicial review in Divisional Court against the University and the Swan respondents with respect to the Swan report and the University’s reliance upon it. Among other things, the applicant raised several alleged errors of law by the Swan respondents including: excess of jurisdiction, failure to exercise jurisdiction, violation of natural justice and procedural unfairness, bias, breach of the Canadian Charter of Rights and Freedoms, omission of evidence, contradiction of evidence, and failure to state reasons.

28By Interim Decision 2011 HRTO 550, dated March 18, 2011, the Tribunal deferred consideration of both of the applicant’s Applications pending the outcome of the judicial review proceeding.

29By decision dated May 31, 2011, the Court declined to exercise its discretion to grant judicial review. See Taucar v. University of Western Ontario, 2011 ONSC 3069. The Court held that the application lacked the requisite public character to render it amenable to judicial review. The Court held that the alternate process created by the parties was “intended to have the complaint determined in a summary manner, leaving the essential findings to be made by the Investigator.” Further, the Court held “[o]n the basis of the Investigator’s report, there was no determination that the Provost [of the University] could reasonably have made other than the one she did.” The Court held that so long as the process followed was that which the parties agreed to, which the Court found it was, the applicant could not complain that the process was deficient or that some other process should have been followed. Ultimately, the Court concluded as follows at paras. 22-24:

… on all the evidence, the applicant’s complaint, taken at its strongest, would not likely be of much importance to anyone other than the parties themselves. Even though the applicant was undoubtedly bothered by the alleged conduct of her colleague, that conduct was of a relatively minor matter that might well have been resolved in a less extravagant and costly manner.

Despite the university’s undoubted public duty to provide a harassment and discrimination-free workplace, we regard the process by which the parties agreed to have the applicant’ s complaint determined as reflective of the parties’ intention to treat it as if it were a purely domestic matter that should be left entirely to the university for resolution. Accordingly, it lacks the requisite public character to render it amenable to judicial review.

It would clearly not be in the public interest or the university’s interest as a public institution that we countenance the expenditure of scarce public funds to make available to the applicant the opportunity to seek judicial review.

30Both the Court of Appeal for Ontario and the Supreme Court of Canada denied the applicant’s motions for leave to appeal the Divisional Court’s decision.

31Prior to filing her application for judicial review, the applicant also filed a complaint with the Ontario Labour Relations Board. Among other things, in the complaint, she alleged that her union had breached its duty of fair representation by refusing to file a grievance on her behalf and due to what she alleged was a flawed dispute resolution process applied in her case. The Board dismissed the applicant’s complaint by decision dated December 14, 2010. See Taucar v. University of Western Ontario Faculty Association, 2010 CanLII 74589 (ON LRB).

32Following the exhaustion of her rights to seek leave to appeal the Divisional Court’s decision, the applicant filed a request to reactivate her Applications before the Tribunal. By Interim Decision 2012 HRTO 1300, dated June 29, 2012, the Tribunal reactivated the Applications. As noted above, by Case Assessment Direction dated July 27, 2012, the Tribunal ordered a summary hearing into the issues identified at the outset of this Decision.

summary hearings

33Pursuant to Rule 19A of the Tribunal’s Rules of Procedure, the Tribunal may dismiss an application if there is reasonable prospect that the application or part of the application will succeed.

34In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

35As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

36As set out in the Tribunal’s CAD, the question in this case is whether what the applicant alleges against the respondents may be reasonably considered to amount to a Code violation. With respect to the Swan respondents, the issue is also whether these respondents are immune from review by operation of the doctrine of adjudicative immunity.

Whether doctrine of adjudicative immunity applies to THE swan respondents

Overview of case law

37The Tribunal provided a very detailed review of the doctrine of judicial immunity in Hazel v. Ainsworth Engineered, 2009 HRTO 2180 (“Hazel”) and Cartier v. Nairn, 2009 HRTO 2208 (“Cartier”). In Hazel, the Tribunal noted that the principle of judicial immunity finds its origins in the English common law. 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. As the Tribunal noted, judicial immunity is necessary to protect the public’s interest in a fair, impartial and independent justice system and also promotes the finality of legal proceedings.

38The principle of judicial immunity has been applied to protect judicial actors from human rights complaints. See, for example, Taylor v. Canada (Attorney General), 2000 CanLII 17120 (FCA), [2000] 3 FC 298 (C.A.) (“Taylor”) and Gonzalez v. Ministry of Attorney General, 2009 BCSC 639. In Gonzalez, the British Columbia Supreme Court addressed the relationship between the principle of judicial immunity and the quasi-constitutional status of human rights legislation at para. 49 as follows:

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.

39The doctrine 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. See, for example, Agnew v. Ontario Association of Architects, (1987), 1987 CanLII 4030 (ON HCJ), 64 O.R. (2d) 8 (Div. Ct.) (“Agnew”) and Ermina v. Canada (Minister of Citizenship and Immigration, (1998), 1998 CanLII 8969 (FC), 167 D.L.R. (4th) 764 (F.C.T.D.).

40In Agnew, the Court held at para. 27 that judicial immunity applied to bar members of a committee of the Ontario Association of Architects from having to testify about a determination they had made pursuant to their decision-making authority 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.

41The Court in Agnew went on to describe, at para. 28, how judicial immunity ensures that adjudicative decisions are reviewed through the proper channels of review and appeal, instead of by process of cross-examination:

Apart from the practical consideration that tribunal members and judges would spend more time testifying about their decisions than making them, their compellability would be inconsistent with any system of finality of decisions. No decision and a fortiori no record, would be really final until the judge or tribunal member had been cross-examined about his decision. Instead of review by appeal or extraordinary remedy, a system would grow up of review by cross-examination. In the case of a specialized tribunal representing different interests the mischief would be even greater because the process of discussion and compromise among different points of view would not work if stripped of its confidentiality.

42In several decisions, the Tribunal has held that the doctrine of judicial immunity extends to quasi-judicial decision-makers whose decisions are challenged under the Code. When applied to quasi-judicial decision-makers, the doctrine may be more accurately referred to as the doctrine of adjudicative immunity. In Cartier, the Tribunal concluded that the doctrine applied to a labour arbitrator as an adjudicator of a grievance. Likewise, in Hazel, the Tribunal determined that a labour arbitrator was immune with respect to the exercise of all decision-making and dispute resolution functions including the mediation of a grievance. In Hazel, the Tribunal noted that mediation was part of the dispute resolution process under the collective agreement. It held that a mediator was immune under the Code from claims arising from the exercise of his or her functions in assisting the parties in reaching a resolution of the dispute.

43The Tribunal has applied the doctrine of adjudicative immunity to various other quasi-judicial decision-makers who are charged with deciding a dispute between others. For example, the Tribunal has held that the following quasi-judicial decision-makers are covered by the doctrine of adjudicative immunity: arbitrators who are subject to the Arbitration Act, S.O. 1991 c.17, as amended (Martek v. Ontario (Attorney General), 2011 HRTO 1077); the Ontario Labour Relations Board (Vanhelvoort v. Ontario Labour Relations Board, 2011 HRTO 1185) (“Vanhelvoort”); the Landlord and Tenant Board (Skanes v. Landlord and Tenant Board, 2010 HRTO 2532); the Ontario Municipal Board (Robinson v. Ontario Municipal Board, 2010 HRTO 207), the Workplace Safety and insurance Appeals Tribunal (Higginson v. Workplace Safety and Insurance Appeals Tribunal, 2010 HRTO 111); the Criminal Injuries Compensation Board (McWilliams v. Criminal Injuries Compensation Board, 2010 HRTO 937); and the Discipline Committee of a professional association (Bin Slama v. Certified Management Accountants of Ontario, 2012 HRTO 1027 (“Bin Slama”)).

44The Tribunal has also held that the extension of the doctrine of adjudicative immunity has its limits. In several cases, the Tribunal has held that the doctrine of adjudicative immunity did not apply because the decision-maker at issue was not an independent and impartial decision-maker deciding a dispute between others. See, for example, Dopelhamer v. Workplace Safety and Insurance Board, 2010 HRTO 765. The Tribunal has also held that the doctrine may not apply to immunize judicial or quasi-judicial decision-makers in exercising administrative tasks, rather than adjudicative functions. See for example Hazel, above at para. 97.

45Whether explicitly or implicitly, the Tribunal has relied upon two interrelated rationales for applying the doctrine of judicial immunity to quasi-judicial decision-makers. Both rationales are consistent with the reasons of the Divisional Court in Agnew, above. First, the Tribunal has accepted that quasi-judicial decision-makers are functionally comparable to judges. These decision-makers play a critical role in the administrative justice system. They are called upon to adjudicate the fundamental rights of citizens. Therefore, impartiality and independence of thought and decision-making is no less important for quasi-judicial decision-makers than for judges. See for example: Hazel, above at para. 86; Cartier, above at para. 20.

46The second rationale the Tribunal has relied upon for extending the doctrine of judicial immunity to quasi-judicial decision-makers is to prevent collateral attacks on their decisions. The application of the doctrine of adjudicative immunity ensures that adjudicative decisions are reviewed through the proper channels of judicial review and appeal instead of by undertaking a legal proceeding against the adjudicator himself or herself. If parties are dissatisfied with the decisions of quasi-judicial decision makers, they may appeal these decisions or seek judicial review where available, but they are prevented from pursuing litigation against them before the Tribunal. See for example, Hazel at para. 98 and Bin Slama at para. 14.

47In the end, it is necessary to pay close attention to the facts in order to determine whether the doctrine of adjudicative immunity applies in any particular case. In particular, the Tribunal must consider the role being performed by the decision-maker sought to be covered by the immunity when considered against the public interests that the immunity aims to protect as well as the quasi-constitutional rights protected by the Code.

48As the Tribunal held at para. 98 of Hazel:

The touchstone for the application of immunity is to ensure independence of the decision-making and dispute resolution process. Immunity applies to those functions that can legitimately be said to be integral to that process, and to the effective exercise of the duties of the arbitrator or mediator.

49The applicant’s counsel relies upon the Federal Court of Appeal’s decision in Taylor to argue that there are two exceptions to the application of the doctrine of judicial immunity. He submits that the doctrine does not apply (i) where an adjudicator knowingly acted beyond his or her jurisdiction and (ii) where an adjudicator acted in bad faith. In Taylor, the Court stated that it was inclined to accept the proposition that these two exceptions recognized by Lord Denning in an English case were good law in Canada. However, the Court went on to find that the case before it did not fall within these exceptions.

50Whatever may be said of the Federal Court of Appeal’s comments in Taylor, the law in Ontario on this issue has been clearly set out by the Superior Court of Justice in Tsai v. Klug, [2005] O.J. No. 2889, 2005 CanLII 19788 (SCJ). In that case, a plaintiff alleged that two judges of the Small Claims court were guilty of conspiracy and case fixing. The plaintiff argued that the principle of judicial immunity did not extend to conduct that was deliberate, malicious or carried out in bad faith. The Court rejected this argument. The Court held that, while immunity does not extend to a judge’s purely personal acts, there is an absolute immunity for acts done in the course of, or in connection with, a judge’s judicial duties.

51The Court stated as follows:

In Morier v. Rivard, 1985 CanLII 26 (SCC), [1985] 2 S.C.R. 716 at 737ff, the Supreme Court of Canada considered whether judicial immunity extended to acts that may be without or in excess of jurisdiction. The Supreme Court of Canada held that the civil immunity of Superior Court Judges in Ontario and Quebec was absolute. While the immunity does not extend to purely personal acts, judges are however immune for any acts done in the course of or in connection with their legal duties, even if the acts are malicious or mal fides. The Court cites with approval a number of old English cases. At page 737:

In Fray v. Blackburn (1863), 3B. & S. 576, it states at p. 578: It is a principle of our law that no action will lie against a Judge of one of the Superior Courts for a judicial act, though it be alleged to have been done maliciously and corruptly. The public are deeply interested in this rule, which, indeed, exists for their benefit, and was established in order to secure the independence of the Judges and prevent their being harassed by vexatious actions.

The plaintiff’s submission that an illegal act cannot be part of judges’ duties and therefore cannot be the subject of civil immunity is, at first blush, logical. However, all suits against judges in relation to their cases would necessarily allege that they have acted improperly – either negligently, outside their jurisdiction, maliciously or even illegally. The civil immunity is absolute for any acts related to or in connection with their judicial capacity – whether they are proper judicial actions or not. The immunity relates to civil liability only. The right to be tried by an independent and impartial tribunal is an integral part of the fundamental justice protected by s. 7 of the Charter. The constitutional protection is there to ensure that judges can perform their duties independently, impartially and free from concern that they will be personally sued for unpopular decisions.

52The Court’s decision was upheld by the Ontario Court of Appeal: (2006), 2006 CanLII 4942 (ON CA), 207 O.A.C. 225. This decision has been followed by courts in Ontario in several other decisions. Most notably, the decision was followed by the Superior Court of Justice in Baryluk (Wyrd Sisters) v. Campbell, 2008 CanLII 55134 (ON SC) (“Baryluk”). In that decision, the Court specifically rejected the exceptions to the principle of judicial immunity that the Federal Court of Appeal accepted in Taylor stating:

To the extent that the Federal Court of Appeal in Taylor v. Canada (Attorney General), 2000 CanLII 17120 (FCA), [2000] 3 F.C. 298 (C.A.), a case the plaintiff relied on, decided that there was a narrow “bad faith” exception to the judicial immunity principle, I would note that Sexton J.A.’s observations to that effect are obiter (see paragraph 47), and I respectfully decline to follow that decision.

Like Karakatsanis J., I specifically reject the argument that a pleading of bad faith or deliberate excess of jurisdiction can defeat the principle of judicial immunity. If it were otherwise, mere allegations in pleadings could place judges in the position of having to defend the manner in which they have discharged their judicial duties in subsequent legal proceedings commenced by disaffected litigants. To place judges in this position would be to seriously undermine the principle of judicial independence.

53The Court reiterated that 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 personally. See also Agnew at p. 28. The Tribunal cited Baryluk with approval in Lemieux v. Howe, 2010 HRTO 1596 at paras. 10-11 (“Lemieux”) to dismiss an applicant’s claim that the doctrine of adjudicative immunity did not apply because the arbitrator in that case allegedly had breached natural justice.

54The Tribunal has consistently held that the doctrine of adjudicative immunity applies even where a dissatisfied party alleges that the adjudicator did not follow the rules of natural justice. See, for example, Kogan v. Human Rights Tribunal of Ontario, 2011 HRTO 1486 (“Kogan”), and Vanhelvoort, above. To date, the Tribunal has not had the opportunity to address the two exceptions to the doctrine of adjudicative immunity put forward by the applicant’s counsel in this case.

Summary of parties’ positions

55The applicant’s counsel advances the following arguments:

a. First, he submits that the Tribunal already rejected the argument that the Swan respondents were covered by the doctrine of adjudicative immunity in a Case Assessment Direction dated January 7, 2011.

b. Second, he submits that the doctrine of adjudicative immunity does not apply for two reasons: (1) because the doctrine cannot override a quasi-constitutional statute such as the Code and (2) because Mr. Swan was not an arbitrator under the collective agreement but was instead an arbitrator by contract.

c. Finally, if the doctrine applies to Mr. Swan, the applicant’s counsel seeks to rely upon the exceptions to the principle of adjudicative immunity accepted by the Federal Court of Appeal in Taylor. He submits that, if the doctrine does apply to Mr. Swan, any immunity was lost or vitiated because he knowingly exceeded his jurisdiction and/or acted in bad faith.

56Counsel for the Swan respondents submits that the doctrine of adjudicative immunity applies to the Swan respondents for the following reasons:

a. He submits that Mr. Swan was a neutral third party fact-finder appointed as part of the dispute resolution process under the collective agreement. He submits that the Application against the Swan respondents relates to Mr. Swan’s adjudicative functions, as the allegations focus upon the contents of the Swan Report and the alleged errors contained within it.

b. He submits that there is no evidence that Mr. Swan knowingly acted outside his jurisdiction or that he acted in bad faith. Therefore, he submits that it is not necessary to decide whether the exceptions to the doctrine of adjudicative immunity put forward by the applicant’s counsel form part of Canadian law.

c. Finally, he submits that, if it were necessary to decide the point, the exceptions to the application of the doctrine of adjudicative immunity urged by the applicant’s counsel have been rejected by courts in Ontario.

No prior determination of adjudicative immunity issue

57The first argument advanced by the applicant’s counsel can be easily disposed of. In his written submissions, he submits that the Swan respondents’ attempt to raise the issue of adjudicative immunity is out of order because, he argues, the Tribunal already determined that adjudicative immunity did not apply to the Swan respondents. According to the applicant’s counsel, the Tribunal made this determination in a CAD dated January 7, 2011.

58Although the applicant’s counsel made this same submission in oral argument, he did not press the point. I find that he was right not to do so since there is absolutely no basis for this argument. In the CAD referred to, the Tribunal directed that the Application be delivered to the Swan respondents. It made this direction after the applicant clarified that it was her intention to name these two parties as respondents to the present Application. The Tribunal made absolutely no determination of the adjudicative immunity issue whatsoever in the CAD. It simply ordered that the Application be delivered to the Swan respondents.

Swan respondents covered by adjudicative immunity

59The applicant’s counsel argues that since the doctrine of adjudicative immunity is a common law doctrine it cannot override a quasi-constitutional statute such as the Code. He seeks to make a distinction between the doctrines of judicial immunity and adjudicative immunity. Citing an English case from the 1600s, Floyd v. Barker (1607), 77 E.R. 1305, he argues that such a distinction has been made under English law. He argues that the scope of immunity provided to judges is greater than that provided to quasi-judicial decision-makers because only judges are subject to a constitutional guarantee of independence. Quasi-judicial decision-makers, meanwhile, have no such constitutional guarantee: Oceanport Hotel v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781. The applicant’s counsel also cites the preamble to the Constitution Act, 1867 (UK), 30 & 31 Victoria, c. 3 for this proposition since it refers to the Canadian Constitution as being “similar in principle to that of the United Kingdom” which he claims supports the view that non-judges making quasi-judicial decisions do not enjoy the same immunity as judges. In sum, the applicant’s counsel submits that the common law doctrine of judicial immunity cannot exempt quasi-judicial decision-makers from the application of a quasi-constitutional statute such as the Code because they are not covered by a constitutional guarantee of independence.

60I note parenthetically that, although the applicant’s counsel did not rely upon the British Columbia Human Rights Tribunal in Madadi v. B.C. (Ministry of Education), 2012 BCHRT 380, this argument is substantially similar to one accepted by the B.C. Human Rights Tribunal in that case. In Madadi, the B.C. Human Rights Tribunal declined to follow this Tribunal’s case law on adjudicative immunity. The B.C. Tribunal held that the doctrine of judicial immunity does not apply to immunize quasi-judicial decision-makers from the application of the British Columbia Human Rights Code. According to the B.C. Tribunal, only a constitutional immunity can limit the Tribunal’s jurisdiction absent legislative language to the contrary. In its view, a common law principle cannot be used to read down the application of human rights legislation.

61I agree with the analysis consistently applied in the Tribunal’s case law that the doctrine of adjudicative immunity applies to exempt quasi-judicial decision-makers from the application of the Code due to their functional comparability to judges. In my view, this approach strikes an appropriate balance between protecting the quasi-constitutional rights guaranteed by the Code and also furthering the important public interests underlying the doctrine of adjudicative immunity. I agree with both of the rationales set out in the Tribunal’s case law. Impartiality and independence in decision-making are no less important for a quasi-judicial decision-maker than they are for a judge. As well, in general, quasi-judicial decisions should not be subject to collateral attack through the human rights process, but should instead be challenged by whatever avenues of review and appeal may be available. Having said this, I also agree that the Tribunal must proceed cautiously in applying the doctrine of adjudicative immunity. As an exemption to the application of the Code, the doctrine of adjudicative immunity should be given no larger an application than is necessary to protect the public interests underlying the doctrine. See for example Hazel, above at para. 86.

62In my view, the Tribunal has struck an appropriate balance by extending the doctrine of judicial immunity to quasi-judicial decision-makers who function as neutral or impartial third parties deciding disputes between others. The Tribunal has also struck the appropriate balance by finding that the doctrine only applies to these adjudicators with respect to those functions that can legitimately be said to be integral to the effective exercise of their duties as quasi-judicial decision-makers.

63The applicant’s counsel argues that, even if the doctrine of adjudicative immunity may apply to some quasi-judicial decision-makers, it does not apply to the Swan respondents. He argues that the doctrine is inapplicable to the Swan respondents because, in his view, Mr. Swan was not an arbitrator under the collective agreement. Therefore, according to the applicant’s counsel, he was not governed by the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A. Both before me and before the Divisional Court, the applicant’s counsel argued that Mr. Swan was a private arbitrator covered by the Arbitrations Act. I note that the Divisional Court rejected this argument in its decision on a preliminary motion relating to the applicant’s judicial review application: Taucar v. University of Western Ontario, 2011 ONSC 1535. The Divisional Court treated Mr. Swan as an arbitrator or quasi-judicial decision-maker subject to the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, by applying the test for the admissibility of affidavits in judicial review proceedings developed by the Court of Appeal for Ontario in Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980), 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). In any event, whether Mr. Swan was governed by the Arbitrations Act or the Labour Relations Act is immaterial as the Tribunal has held that the doctrine of adjudicative immunity applies to both.

64I find that the Swan respondents are covered by the doctrine of adjudicative immunity. In making this determination I have taken into account the particular circumstances surrounding Mr. Swan’s role in this case. I have carefully reviewed the Memorandum of Agreement under which Mr. Swan was appointed against the context of the dispute-resolution process for discrimination and harassment complaints set out in the collective agreement. Based on this review, I find that Mr. Swan’s role was to be a neutral and impartial fact-finder who carried out functions that were integral to the alternate dispute resolution process agreed to by the parties to the Memorandum of Agreement. As Mr. Swan noted in his report, although he was assigned a fact-finding role, this role necessarily required him to engage in an interpretation of what constitutes discrimination and harassment in order to decide which facts were pertinent and to place the facts in context. Moreover, it is clear from the materials filed by the parties that Mr. Swan was to exercise his jurisdiction as a substitute for the Panel of Inquiry which itself is an alternative to the collective agreement’s grievance arbitration procedure to deal specifically with discrimination and harassment complaints filed under the collective agreement. For all these reasons, I find that Mr. Swan was the kind of neutral or impartial third party deciding disputes between others to which the doctrine of adjudicative immunity applies.

65I also find that the doctrine applies because the applicant is seeking to challenge functions that can legitimately be said to be integral to the effective exercise of Mr. Swan’s duties as a neutral third party deciding the dispute between the parties. The Application challenges Mr. Swan’s treatment and weighing of the evidence and his credibility assessments. It also challenges his ultimate conclusion that the evidence did not support her complaint. The doctrine of adjudicative immunity applies to these functions as they are integral to Mr. Swan’s role within the dispute-resolution process agreed to by the parties.

66As a result, any challenge to Mr. Swan’s report can only be undertaken through any channels of appeal or review that may be available to the applicant, not by undertaking a legal proceeding against Mr. Swan himself. I note that the applicant has in fact pursued a judicial review application in this matter but that she was unsuccessful. As such, the Swan report, including its findings and conclusions, must be now be taken as final. The fact that the Court declined to grant judicial review does not alter my conclusion that the Swan respondents are immune from the application of the Code by operation of the doctrine of adjudicative immunity.

Exceptions to doctrine do not apply

67In my view, the exceptions to the doctrine of adjudicative immunity sought to be relied upon by the applicant do not apply. As noted above, the applicant relies upon the Federal Court of Appeal’s decision in Taylor and English case law to argue that the doctrine of judicial/adjudicative immunity does not apply in situations where a decision-maker knowingly exceeds his or her jurisdiction or acts in bad faith. Based on the Ontario Superior Court decisions discussed above, it is doubtful that such exceptions form part of the law in Ontario. The rulings of the Ontario courts are binding upon the Tribunal and in any event would carry more weight than the Federal Court of Appeal’s arguably obiter statements in Taylor.

68Even if the two exceptions sought to be relied upon by the applicant were part of Ontario law, I find that neither would apply in the circumstances of his case for the reasons that follow.

Knowingly exceeding jurisdiction

69The applicant’s counsel submits that Mr. Swan knowingly exceeded his jurisdiction as set out in the Memorandum of Agreement. He submits that Mr. Swan’s sole role under the Memorandum of Agreement was to make findings of fact based on all the evidence presented.

70The applicant’s counsel submits that there is evidence on the face of the record that Mr. Swan knowingly exceeded his jurisdiction by making determinations of the case on its merits, which was a function reserved to the University under the Memorandum of Agreement. In support of his argument, he cites several portions of the Swan report in which Mr. Swan found that particular actions did not constitute harassment or discrimination or that these actions were reasonable in the circumstances. The applicant also claims that Mr. Swan made similar assertions in his correspondence with the parties. For all these reasons, the applicant’s counsel claims that Mr. Swan deliberately or knowingly exceeded his jurisdiction in such a way as to fall within the exception to the doctrine of adjudicative immunity that he claims has been recognized in the following English and Canadian cases: Sirros v. Moore, [1975] 1 Q.B. 118 (C.A.); Morier v. Rivard, 1985 CanLII 26 (SCC), [1985] 2 SCR 716; Taylor, supra; Royer v. Mignault, 1988 CanLII 445 (QC CA), [1988] R.J.Q. 670 (C.A.).

71I disagree. Upon review of the cases submitted by the applicant’s counsel, it appears that they all rely upon statements from Lord Denning in Sirros v. Moore in which he stated as follows:

So long as he [a judge] does his work in the honest belief that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact. He may be ignorant in law. What he does may be outside his jurisdiction -- in fact or in law -- but so long as he honestly believes it to be within his jurisdiction, he should not be liable. Once he honestly entertains this belief, nothing else will make him liable. He is not to be plagued with allegations of malice or ill-will or bias or anything of the kind. Actions based on such allegations have been struck out and will continue to be struck out. Nothing will make him liable except it be shown that he was not acting judicially, knowing that he had no jurisdiction to do it.

72This passage was quoted by the courts in Morier, Taylor, and Royer cited above. The plaintiffs or applicants in each of those cases argued that the adjudicators whose actions they were challenging had knowingly exceeded their jurisdiction in the manner referred to by Lord Denning in Sirros. In every case, the courts found that, even if the adjudicators in question may have exceeded their jurisdiction in various ways in carrying out their duties, they remained covered by the doctrine of adjudicative immunity so long as they had the jurisdiction to make the orders or carry out the inquiries in question.

73For example in Morier, the Supreme Court rejected a plaintiff’s attempt to rely upon Lord Denning’s exception, stating as follows:

Indeed, there is no question in the case at bar that the appellants, members of the Commission de police, had the necessary jurisdiction to conduct an inquiry and to submit a report. It is possible that they exceeded their jurisdiction by doing or failing to do the acts mentioned in the statement of claim. It is possible that they contravened the rules of natural justice, that they did not inform respondent of the facts alleged against him or that they did not give him an opportunity to be heard. It is possible that they contravened the Charter of human rights and freedoms. All of these are allegations which may be used to support the respondent's other action to quash the report of the Commission de police and the evidence obtained. This action continues to be before the Superior Court, and of course I shall make no ruling upon it: but in my opinion these are not allegations which may be used as the basis for an action in damages.

74This reasoning applies in the circumstances of this case. It is not disputed that Mr. Swan had the jurisdiction to conduct an inquiry and to submit a report in regards to the applicant’s complaint. If the applicant believes that Mr. Swan exceeded his jurisdiction in the way he carried out the inquiry or with respect to the scope of the conclusions in his report, it was open to her to challenge the report through whatever means of appeal or review were available to her. However, as was the case in Morier, she cannot raise these allegations as a basis for a legal action against Mr. Swan personally. As noted above, the applicant did in fact pursue a judicial review application in regards to the Swan report and the Divisional Court declined to exercise its jurisdiction to grant judicial review in her case.

75As a final point, I note that Mr. Swan’s comments in his report demonstrate that he was alive to the challenges associated with his role. He recognized that his jurisdiction was limited to making findings of fact pertaining to the complaint. However, he also noted that it was impossible to decide which facts were pertinent to the complaint without making at least some determination as to what constitutes discrimination and harassment. Therefore, Mr. Swan’s comments in his report do not support the argument that he was deliberately or knowingly exceeding his jurisdiction, as the applicant claims. Instead, these comments merely demonstrate that Mr. Swan was circumspect about the need to remain within the difficult parameters of his mandate under the Memorandum of Agreement and the collective agreement.

76For all the reasons set out above, Mr. Swan’s findings in his report that the evidence did not support the applicant’s allegations of discrimination and harassment do not amount to a deliberate attempt to exceed his jurisdiction in the manner claimed by the applicant.

Bad faith

77The applicant’s counsel submits that a second exception to the application of the doctrine of adjudicative immunity is where an adjudicator has acted in bad faith. Although the applicant’s counsel advances this exception as a separate exception to the doctrine of adjudicative immunity, a review of the cases he submitted suggests that this exception arises from the same cases as the first exception discussed above. In the cases submitted by the applicant’s counsel, the notion of a “bad faith exception” is intertwined with the notion of knowingly acting beyond jurisdiction. That is, if an adjudicator knowingly acts beyond his or her jurisdiction, he or she is acting in bad faith. The applicant seeks to extend the notion of bad faith beyond the meaning given to it in the adjudicative immunity cases he has submitted. He claims that the bad faith exception has never been conclusively defined and that it may cover situations such as acting with fraud, collusion or malice.

78The applicant’s counsel submits that Mr. Swan acted in bad faith by:

a. failing to consider relevant material and evidence which amounted to a denial of natural justice and a failure to provide adequate reasons. According to the applicant’s counsel, Mr. Swan ignored every document that supported the applicant and which contradicted the result he wanted to achieve;

b. infringing the applicant’s procedural fairness rights by failing to provide her with a right to make representations and by actively misleading her;

c. using the clear and cogent standard of proof despite the Supreme Court of Canada’s decision in FH v. MacDougall, 2008 SCC 53, [2008] 3 S.C.R. 41, which found that the standard of proof in all civil cases is a balance of probabilities;

d. discounting evidence from one of the experts who submitted a report in support of the applicant’s case;

e. failing to provide adequate reasons by ignoring key evidence; and

f. having a reasonable apprehension of bias because he allegedly counselled the applicant’s colleague on how to minimize the evidence against her.

79I must note that many of these allegations are vaguely stated in the applicant’s materials and are thoroughly unsupported by the evidence. However, even if there were a basis for making the claims listed above, such claims fall within the categories of procedural fairness or error of law. It is well recognized in the Tribunal’s case law and in court jurisprudence that the doctrine of adjudicative immunity applies even in cases where an applicant alleges that an administrative decision-maker breached natural justice. See for example, Morier, Kogan, Lemieux, and Vanhelvoort, above. The appropriate means by which to challenge any alleged breaches of procedural fairness or any legal errors by an administrative decision-maker is through whatever rights of appeal or review may be available. Indeed, the applicant’s application for judicial review sets out many of the claims that her counsel has attempted to frame as “bad faith” in this summary hearing.

80Finally, I note that the applicant’s counsel submits in his factum that the issue of bad faith cannot be determined without an investigation of the facts including testimony by Mr. Swan and his cross-examination. I cannot agree with this proposition. If it were correct, it would defeat the very purpose for which the doctrine of adjudicative immunity exists – that is, to protect adjudicators from the loss of independence that might result from having to testify and defend themselves for acts related to, or connected with, their adjudicative functions. If adjudicators were required to testify and be cross-examined in any case in which an applicant claims bad faith, all applicants would have an incentive to allege bad faith. This would be the case whether there was a basis for this allegation or not, as it would be a way to force the adjudicator to have to testify to defend themselves against the applicant’s allegations.

81For all the reasons set out above, the application against the Swan respondents falls outside the jurisdiction of the Tribunal due to application of the doctrine of adjudicative immunity. Therefore, the Application against the Swan respondents is dismissed.

Reasonable prospect of success of application against university

82The applicant’s counsel submits that even if the Application is dismissed as against the Swan respondents, it should proceed against the University since the University is not covered by the doctrine of adjudicative immunity.

83Counsel for the University submits that the applicant’s sole allegation against the University is that it relied upon Mr. Swan’s allegedly discriminatory report. According to the University’s counsel, the applicant’s claim against the University assumes that the Swan report is discriminatory and that the taint flows through to the University’s reliance on that report. He argues that, if the Application against the Swan respondents is dismissed on the basis of adjudicative immunity, there can be no case against the University that can have a reasonable prospect of success.

84In the circumstances of this case, I agree that the applicant’s claim against the University stands no reasonable prospect of success. The applicant’s claim against the University in this Application is stated in her reply factum as follows:

UWO [the University] remains liable for its discrimination in relying upon Mr. Swan’s/Swan Ltd.’s discriminatory report in dismissing the Applicant’s Workplace Complaint thereby denying her legislative and contractual right to a discrimination and harassment free workplace.

85The University’s responsibility under the Memorandum of Agreement was, upon receipt of the report, to make a determination with reasons as to whether the complaint was upheld. In the judicial review application in this case, the Divisional Court held that “[o]n the basis of the Investigator’s report, there was no determination that the Provost [of the University] could reasonably have made other than the one she did.” As noted above, the Court declined to exercise its jurisdiction to grant judicial review in her case.

86Based on this decision of the Court, I find that there is no reasonable prospect that the applicant will be able to establish that the University violated the Code in the circumstances of this case. After reviewing the findings of fact contained in the Swan report, the University declined to take any disciplinary measures against the applicant’s colleague. The applicant then filed for judicial review against Mr. Swan and the University. Although the applicant did not specifically plead a violation of the Code in her judicial review application, any discrimination in Mr. Swan’s assessment of credibility, his weighing of evidence or his ultimate conclusions would have constituted a breach of natural justice and/or an error of law. The applicant sought judicial review on these grounds but the Divisional Court declined to intervene. Therefore, the Swan report and its findings with respect to the applicant’s claims of harassment and discrimination were never quashed or set aside. In these circumstances, and in light of the Divisional Court’s conclusions quoted at paras. 29 and 85 above, there is no reasonable prospect that the applicant will be able to show that the University breached the Code by accepting and acting upon the findings of fact contained in the Swan report.

87For these reasons, I find that the Application against the University stands no reasonable prospect of success.

ORDER

88In light of the above, this Application is dismissed.

Dated at Toronto, this 10^th day of April, 2013.

“Signed by”

________________________________

Jo-Anne Pickel

Vice-chair