HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nagy Riad
Applicant
-and-
Her Majesty the Queen in Right of Ontario, as represented by the Minister of the Attorney General, Hilda Litkee and Gerri Wyatt
Respondents
DECISION
Adjudicator: Geneviève Debané
Indexed as: Riad v. Ontario (Attorney General)
APPEARANCES
Nagy Riad, Applicant
Self-represented
Her Majesty the Queen in right of Ontario, as represented by the Minister of the Attorney General, Hilda Litkee and Gerri Wyatt, Respondents
Caroline Cohen, Counsel
1This is an Application filed 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 disability.
2On July 22, 2013 the Tribunal issued a Case Assessment Direction which directed that at the hearing the parties would be required to address a number of preliminary issues, including whether the Application in whole or in part should be dismissed on the basis of delay, pursuant to section 45.1 of the Code and/or because it had no reasonable prospect of success.
3This hearing was held on August 19, 2013 and I gave the parties the opportunity to file additional written submissions.
THE AUGUST 19 2013 HEARING
4Prior to the hearing the applicant advised the Tribunal that he required accommodation for his hearing impairment.
5The Tribunal therefore, made arrangements that the hearing would be held in a small room so that the parties were no further than six feet away from each other, which appeared to satisfy the medical restrictions. At the commencement of the hearing I asked the applicant if he still required an assisted hearing device given the configuration of the room. Despite the fact that the applicant was standing less than two feet away from me he said that he could not hear me and would not respond to me. The Tribunal made arrangements to obtain a FM system. The applicant used this device during the course of the hearing. The applicant was able to fully participate during the hearing.
6At the commencement of the proceeding the applicant advised the Tribunal that the only issue in the Application is his accommodation during the course of a Case Conference Hearing held at the Superior Court of Justice-Family Court on February 12, 2010 before Justice McGee. The applicant indicated that all of the other events described in his Application were to provide the Tribunal with some factual background and context. I advised the parties therefore, that I would not be hearing submissions with respect to the issue of delay because the Application filed on February 11, 2011 is within one year of the allegation of discrimination.
7At the hearing the applicant spent some time explaining that he believes that he has been the victim of unfair treatment during the course of previous divorce proceedings and that this divorce was obtained through fraudulent means. The applicant advised that there has been no recognized divorce pursuant to Church law.
8The applicant believes that the Court and its staff failed to accommodate him on the basis of his disability at the February 12, 2010 hearing. The applicant stated that he has a hearing impediment and that he requires a specialized FM hearing device. He states that the only satisfactory FM system is located at the Ontario Court of Appeal located in downtown Toronto.
9As a remedy the applicant sought significant damages for legal costs incurred. He also seeks that the Tribunal direct the courts that all of his future hearings, for various legal proceedings, be held at the Court of Appeal.
THE PROCEEDINGS BEFORE THE FAMILY COURT
10On February 12, 2010, Justice McGee issued a Decision in the form of an endorsement (the “Decision”) which dismissed the applicant’s motions. The Decision states at paras. 9 and 11:
I was introduced to this issue at the Case Conference on January 4, 2010. On that date Mr. Riad identified himself as hearing impaired, and requested special court services equipment to amplify the proceedings so that he could participate. Such services were not available on that day: so I allowed Mr. Riad to stand beside me and I proceeded slowly and assured myself that he fully heard and participated in those proceedings.
Mr. Riad made complaints today that the equipment was not adequate, and at the same time, he was able to respond quickly to any statements that I made. To be certain that he was hearing the proceeding, Duty Counsel sat beside him to repeat and write down all communications. Mr. Riad made little use of that service and spent the better part of the conference yelling at me.
11The applicant filed an appeal of this Decision which was dismissed by a Registrar’s order on October 7, 2010, for failing to meet the required time-limits. The applicant brought a motion to set aside the Registrar’s order.
12On February 15, 2011, the Divisional Court issued a decision by way of an endorsement which permitted the applicant to proceed with his appeal if he met a number of conditions, including paying outstanding costs.
13Thereafter, there are a series of endorsements and decisions with respect to litigation initiated by the applicant, including that he was declared a vexatious litigant and this finding was ultimately upheld by the Court of Appeal.
14In an endorsement of the Superior Court dated July 31, 2012, the Court which was dealing with a number of issues with respect to the applicant states at para. 13:
Mr. Riad ultimately did not proceed with the motion for leave to appeal the order of McGee J. to the Divisional Court, although in this notice of motion he apparently is seeking to revive it despite long inactivity.
15It appears therefore that the applicant has abandoned, through the courts, his appeal of the February 12, 2010 Decision.
SECTION 45. 1
16Section 45.1 of the Code states:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
17In British Columbia (Worker’s Compensation Board) v. Figliola, (“Figliola”) 2011 SCC 52, [2011] 3 SCR 422 the Supreme Court of Canada considered provisions similar to s. 45.1 in the British Columbia Human Rights Act. The Supreme Court of Canada states at paras. 34 to 38 in Figliola:
At their heart, the foregoing doctrines exist to prevent unfairness by preventing “abuse of the decision-making process” (Danyluk, at para. 20; see also Garland, at para. 72, and Toronto (City), at para. 37). Their common underlying principles can be summarized as follows:
• It is in the interests of the public and the parties that the finality of a decision can be relied on (Danyluk, at para. 18; Boucher, at para. 35).
• Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings (Toronto (City), at paras. 38 and 51).
• The method of challenging the validity or correctness of a judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature (Boucher, at para. 35; Danyluk, at para. 74).
• Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision (TeleZone,at para. 61; Boucher, at para. 35; Garland, at para. 72).
• Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources (Toronto (City), at paras. 37 and 51).
These are the principles which underlie s. 27(1)(f). Singly and together, they are a rebuke to the theory that access to justice means serial access to multiple forums, or that more adjudication necessarily means more justice.
Read as a whole, s. 27(1)(f) does not codify the actual doctrines or their technical explications, it embraces their underlying principles in pursuit of finality, fairness, and the integrity of the justice system by preventing unnecessary inconsistency, multiplicity and delay. That means the Tribunal should be guided less by precise doctrinal catechisms and more by the goals of the fairness of finality in decision-making and the avoidance of the relitigation of issues already decided by a decision-maker with the authority to resolve them. Justice is enhanced by protecting the expectation that parties will not be subjected to the relitigation in a different forum of matters they thought had been conclusively resolved. Forum shopping for a different and better result can be dressed up in many attractive adjectives, but fairness is not among them.
Relying on these underlying principles leads to the Tribunal asking itself whether there was concurrent jurisdiction to decide human rights issues; whether the previously decided legal issue was essentially the same as what is being complained of to the Tribunal; and whether there was an opportunity for the complainants or their privies to know the case to be met and have the chance to meet it, regardless of how closely the previous process procedurally mirrored the one the Tribunal prefers or uses itself. All of these questions go to determining whether the substance of a complaint has been “appropriately dealt with”. At the end of the day, it is really a question of whether it makes sense to expend public and private resources on the relitigation of what is essentially the same dispute.
What I do not see s. 27(1)(f) as representing is a statutory invitation either to “judicially review” another tribunal’s decision, or to reconsider a legitimately decided issue in order to explore whether it might yield a different outcome. The section is oriented instead towards creating territorial respect among neighbouring tribunals, including respect for their right to have their own vertical lines of review protected from lateral adjudicative poaching. When an adjudicative body decides an issue within its jurisdiction, it and the parties who participated in the process are entitled to assume that, subject to appellate or judicial review, its decision will not only be final, it will be treated as such by other adjudicative bodies. The procedural or substantive correctness of the previous proceeding is not meant to be bait for another tribunal with a concurrent mandate.
18This case is unique in the sense that the applicant believes that he was not appropriately accommodated during the course of the proceeding itself. However, the issue of accommodating the applicant was squarely put before Justice McGee. There are numerous decisions included in the materials filed by the parties involving the applicant and it is apparent that some judges have also had some issues with respect to the credibility of the applicant’s submission that he cannot hear them properly. This assessment is based on the applicant’s conduct and level of participation in their courtrooms.
19Justice McGee made a number of procedural decisions with respect to the accommodation of the applicant in her courtroom. It is clear that the Court has the power to interpret, consider and apply the Code, during the course of its proceedings. The accommodation provided to the applicant was based on Justice McGee’s assessment of the applicant’s conduct during the course of the hearing and her interactions with the applicant at a previous case conference. Therefore, I find that the issue of the applicant’s accommodation was appropriately dealt with in the Decision rendered by Justice McGee on February 12, 2010.
20The applicant is dissatisfied with the manner in which he was accommodated. However, the proper mechanism for a review of the Decision is to file an appeal to the Divisional Court. In an appeal, the Divisional Court could determine the issue of the level of accommodation to the applicant and make appropriate directions to the lower court. It appears that these appeal proceedings have been abandoned by the applicant.
21It is instructive however, that the applicant has appealed a number of other unfavourable decisions and has raised the issue of the court’s accommodation of his disability. For example, in a decision issued in Riad v. Aziz, 2011 ONSC 2945, [2011] O.J. No. 1881, the Divisional Court found at paras. 8-10:
The applicant contends that the crux of his appeal will be the fact that the Newmarket Court cannot provide him with the sound amplification equipment he requires due to his profound deafness. This matter too has been dealt with by the various courts.
In a decision dated February 15, 2011, Lauwers J. sitting as a judge in Divisional Court on a leave application noted (at para. 11):
The argument proceeded today despite the absence of assistive technology in the court room to permit Mr. Riad, who is hearing impaired, to hear. To accommodate him, Mr. Riad stood beside me in the witness box, and Mr. Weisberg (sic) stood immediately by him when he made submissions. Judging from the cogency of his arguments and responses, I have no doubt that Mr. Riad was fully able to hear today’s proceedings and to participate. [emphasis added]
He made the same argument in the Toronto Superior Court before Perkins J. when the requested equipment came late and “he refused to try it out”. The court stated:
I am satisfied, however, that the father heard everything necessary to advance and defend his position…His disability was accommodated to the best of our efforts and did not result in a material disadvantage at the motion hearing.
22I find that the applicant cannot attempt to relitigate the issue of his accommodation on February 12, 2010 by instituting this Application. To permit the applicant to proceed with this Application would be a collateral attack on the judicial findings made by the Courts. The mechanism available to him to review these Decisions is to make a proper appeal before the appropriate court.
23For these reasons the Application is dismissed.
24Before addressing one final issue raised by the parties, there is an additional point that needs to be addressed. I note that early on in the processing of this Application, the applicant withdrew as against a judge who he had initially named as an additional respondent. What became apparent during the course of his argument at the hearing was that even though named respondent was the Ministry of the Attorney General and two of its employees the bulk of allegations continued to be against a judge and not against court staff or the Ministry more generally. The Tribunal has on many occasions dismissed allegations similar to those raised during this hearing as outside of its jurisdiction on the basis of the doctrine of judicial immunity. See for example Cartier v. Nairn, 2009 HRTO 2208:
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, 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.
25In my view, these principles almost certainly apply to the allegation that the applicant was not accommodated during the course of the legal proceeding on February 12, 2010.
COST ISSUE
26At the hearing the applicant took the position that the respondent should pay for two medical certificates that he obtained. The applicant relies on the fact that the Ministry filed on July 4, 2013 a Request for an Order During Proceedings (the “RFOP”) to compel the applicant to obtain a medical certificate from an audiologist which answered a number of detailed questions, and was willing to pay for this certificate. On July 10, 2013, the applicant wrote to counsel stating that he could not provide her with such information without a court order.
27However, the applicant provided a certificate dated July 11, 2013 which provides some information but does not address all of the issues raised by the respondent in the RFOP. The cost of this certificate is $75.00 dollars and the Ministry agreed to pay for this cost at the hearing.
28On August 16, 2013, the applicant obtained a second certificate which appears almost identical to the first certificate. However, this certificate includes an additional line which states that “The best ALD for Mr. Riad in such situations would be an FM system.” Mr. Riad seeks the reimbursement of $500.00 dollars for this medical certificate.”
29At the hearing the Ministry disputed that it had to pay the additional cost of a $500.00 dollar certificate. I directed the parties to make submissions on whether costs should be awarded and whether I had the jurisdiction to award costs.
30During the course of the additional submissions made by the parties, the applicant stated that during the course of the hearing counsel for the respondents agreed to pay the cost of the $500.00 dollar certificate. This representation is not accurate since counsel has always disputed the reimbursement of this $500.00 dollar cost. I wish to clarify that at no time during the hearing did counsel for the respondents state that the Ministry would pay for this certificate. Indeed, this is why I directed the parties to make submissions on this outstanding issue.
31I find that The Tribunal does not have the power to award costs: see Dunn v. United Transportation Union, Local 104, 2008 HRTO 405.
32Regardless, I have considered the merits of the submissions made by the parties and I find that even if I had the jurisdiction to award costs that I would not order the Ministry to reimburse the applicant for cost of the second certificate.
33I note that the applicant opposed the Ministry’s RFOP and the certificates provided by the applicant fall short of meeting the detailed requirements sought by the Ministry. In this case, it was incumbent on the applicant to establish that he required accommodation and to present medical evidence in support of that position at the hearing. The applicant must bear that cost.
Dated at Toronto, this 13th day of January, 2014.
“Signed by”
Geneviève Debané
Vice-chair