HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joe Clark

Applicant

-and-

Her Majesty the Queen in Right of Ontario, as represented by the

Attorney General of Ontario

and

Her Majesty the Queen in Right of Ontario, as represented by the Minister of Municipal Affairs and Housing

Respondents

DECISION

Adjudicator: Paul Aterman

Date: October 20, 2014

Citation: 2014 HRTO 1555

Indexed as: Clark v. Ontario (Attorney General)

WRITTEN SUBMISSIONS

Joe Clark, Applicant

Self-represented

1This Decision explains why the Tribunal has no jurisdiction to deal with this Application.

2The Application alleges discrimination with respect to services because of association with a person identified by a prohibited ground of discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3The applicant is a tenant. He was notified of a hearing at the Landlord and Tenant Board (“the Board”) but he could not attend because his partner had a sudden medical emergency and the applicant had to be at the hospital. The applicant faxed a letter to the Board the day before the hearing. It explained his circumstances and requested an adjournment. It also stated that the applicant would only agree to the landlord’s request to withdraw its application before the Board if this were done on a “with prejudice” basis.

4The applicant alleges that the staff of the Board failed to put the letter before the member conducting the hearing. The hearing proceeded in the applicant’s absence and the landlord was permitted to withdraw its application, but this was granted by the Board on a “without prejudice” basis.

5The applicant requested a review of that decision, arguing that he had been denied an opportunity to be heard. A Board member determined that the decision should not be reviewed because there was no real prejudice to the applicant. The member issued reasons for decision which explain that in the event the landlord files a new application the applicant will be given an opportunity to be heard. The reasons explain that the decision to grant a review is discretionary and there were not sufficient reasons to grant a review in this case.

6The applicant then requested a review of that decision. He provided four pages of written submissions that set out the facts and then argued why the decision to deny a review was wrong. A Vice-chair of the Board denied this request. The reasons for decision explain why. They also inform the applicant that if he wishes to challenge that decision, the proper place for doing so is before the Divisional Court.

7The applicant then requested a review by the Associate Chair of the Board. This too was denied. The letter from a Co-ordinating Vice-chair upholds the previous decision.

8The applicant filed the present Application. It alleges that the entire course of conduct of the Board, from the failure to provide the applicant’s adjournment request to the presiding member through to its repeated refusals to review the initial decision, constitute discrimination that has its root in the disability of the applicant’s partner, as this is what prevented the applicant from going to the hearing in the first place.

9The Tribunal requested submissions from the applicant as to why it has jurisdiction to deal with this Application. The doctrine of adjudicative immunity means that this Tribunal has no authority to hear applications that contest adjudicative determinations by tribunals or courts.

10The applicant argues that the doctrine does not apply to the facts of this case. He says that what caused the initial hearing to go ahead without him was an administrative error. It arose because of an error on the part of Board staff in not placing his adjournment request before the presiding member. The applicant maintains that because he was denied an opportunity to be present and to make his arguments, the Board’s alleged error in proceeding was administrative in nature and not adjudicative.

11I do not agree. Regardless of what caused the presiding member to proceed in the applicant’s absence, in deciding to go ahead with the hearing the presiding member was exercising adjudicative functions. The decision necessarily entailed the exercise of an adjudicative function because it was the member alone who was empowered to determine whether it was fair to proceed with the hearing or not.

12All of the subsequent refusals of the Board to review the original decision in this case are also adjudicative in nature. In each instance the Board was applying the law to the facts of this case and arriving at reasoned decisions which were communicated to the applicant in writing. The applicant was advised of what recourse was available to him. In each instance the Board was exercising the adjudicative functions that are at the core of its mandate as an administrative tribunal.

13This Tribunal has no authority to review such decisions (see Cartier v. Nairn, 2009 HRTO 2208; Hazel v. Ainsworth Engineered Corp., 2009 HRTO 2180; Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115.

order

14The Application is dismissed.