Arseneault v. Landlord and Tenant Board – Eastern Regional Office, 2014 HRTO 946

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Pierre Arseneault

Applicant

-and-

Landlord and Tenant Board – Eastern Regional Office

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: June 26, 2014

Citation: 2014 HRTO 946

Indexed as: Arseneault v. Landlord and Tenant Board – Eastern Regional Office

APPEARANCES

Pierre Arseneault, Applicant

Self-represented

Landlord and Tenant Board – Eastern Regional Office, Respondent

Meagan Williams, Counsel

1This Interim Decision addresses the issue of whether all or part of the Application is outside of the Tribunal’s jurisdiction due to the application of the doctrine of adjudicative immunity.

allegations in application

2In his Application, the applicant alleges that the respondent breached the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), when it scheduled his four applications for the same hearing day. The applicant states that he has a disability that impairs his ability to focus. He requested that the four most recent applications he filed with the Landlord Tenant Board – Eastern Regional Office (“LTB”) be heard in separate hearings on separate days. In his Application, he alleges that the LTB breached the Code by failing to accommodate his disability-related accommodation request. In his Application, the applicant also referred to comments allegedly made by a Member of the LTB at a hearing into a previous application he had filed with the LTB.

3By Case Assessment Direction, the Tribunal directed a preliminary hearing to determine whether all or part of the Application falls outside the Tribunal’s jurisdiction due to the principle of adjudicative immunity.

4The Tribunal held a preliminary hearing on June 6, 2014. At the hearing, I heard testimony from the applicant and Jim Murchison, a Customer Service Officer at the LTB.

Factual background

5The Applicant has filed various applications with the LTB. In the hearing, he referred to three previous applications that were heard and dismissed by the LTB in the first half of 2012. The applicant took issue with the LTB’s decisions in those previous applications as well as certain comments made by LTB Members during the hearings of those applications. However, as noted below, the applicant conceded that the decisions of Members and any comments made by Members in the course of proceedings are covered by adjudicative immunity.

6This Application centers on four further applications that the applicant filed with the LTB in late June 2012. On June 25, 2012, the applicant sought to file four further separate applications against his landlord. An LTB Customer Service Officer told him he could only file two applications per day. The applicant filed two applications on June 25, 2012 and was initially provided July 18th and July 25th as hearing dates for these applications.

7On June 26, 2012, Mr. Murchison left the applicant a voicemail message informing the applicant that the LTB was rescheduling the July 18th and 25th hearing dates. He stated that the rescheduling was being done “at the Board’s initiative to expedite the process so that everything will be heard on July 31st.” Mr. Murchison said that this was to “try to stop the bottleneck of applications and trouble with blocks now that are getting clogged up with the amount of applications dealing with similar matters.” A recording of the voicemail message was admitted into evidence at the preliminary hearing as well as a transcription of the message made by the applicant. After leaving the voicemail message, Mr. Murchison entered a record of transaction in the LTB’s computer system stating that he had left a message for the applicant saying that all matters would be heard together.

8On June 28, 2012, the applicant attended at the LTB to file the two other applications he had attempted to file on June 26th. The applicant was initially served by another Customer Service Officer and then spoke to Mr. Murchison. The applicant audio-recorded his conversations with both of them without their knowledge. The audio recording was admitted into evidence at the preliminary hearing.

9While he was at the LTB service counter on June 28th, the applicant asked the Customer Service Officer serving him who had made the decision to schedule his applications for the same hearing day. The Customer Service Officer said she could not find a record on the system as to who made the decision to reschedule the applications. The applicant asked the Customer Service Officer who would normally make a decision to hear applications together. The Customer Service Officer said she was not sure and that she thought it could either be the Hearing Coordinator or a Member.

10As the applicant was speaking to the other Customer Service Officer, Mr. Murchison arrived. The applicant asked Mr. Murchison who had made the decision to reschedule his applications. Mr. Murchison said he thought he remembered but would check. He left the counter for approximately 10 minutes.

11When Mr. Murchison returned he said that he had had a discussion with two people and was not sure which one of them had made the decision. He then said:

Ultimately, it is an administrative/management decision to do with Rule 1.1. [of the LTB’s Rules of Practice] where the Board has the authority to find the most expeditious way to deal with when there are a number of different cases coming together involving the same parties.

12Mr. Murchison entered a record of transaction into the LTB computer system on June 28, 2012 which stated:

Mr. Arsenault wanted to know who made the decision to reschedule the Hearings. I told him that it was an administrative decision per rule 1.1 regarding the Board having the right to adopt the most expeditious manner to disposes (sic) of matters and since there were numerous cases regarding the same parties we felt it was expeditious. He believes that the Human Rights Code supercedes all other jurisdictions and indicated he may withdraw all or some of the cases and pursue the matter through another forum. I also informed him that continued filings could result in the board ordering costs if it is perceived that they are being filed maliciously to overburden the Board or the respondent.

13At the preliminary hearing, Mr. Murchison testified that Customer Service Officers enter records of transaction when a decision is communicated to them or when they have a discussion with a person that is part of an active file.

14Mr. Murchison testified that, when the applicant requested separate hearings for each of his applications, he told the applicant that it was not his decision. Mr. Murchison testified that he told the applicant that he would need to address the matter with an adjudicator or possibly the hearings coordinator.

15Mr. Murchison testified that he consulted a Member of the LTB about how to advance the matter. He testified that initially the Member said he wanted to think about it further. Mr. Murchison testified that he had a discussion with a Member about the issue before he left his voicemail for the applicant on June 26th. According to Mr. Murchison, he and the Member had a discussion about expeditiousness, the LTB’s jurisdictional limits as to maximum damage awards, problems that might be associated with separate hearings, the possibility of inconsistent results if different adjudicators were to hear the applicant’s different applications. Mr. Murchison testified that it was the Member’s decision that the applicant’s four applications initially should be scheduled to be heard together.

16According to Mr. Murchison, once he had the Member’s decision and reasons, he called the applicant and left the voicemail message described above. Mr. Murchison confirmed that the applicant’s transcription of the voicemail message was substantially accurate except for one word which is irrelevant for the purposes of this decision.

17When asked why he did not mention speaking to a Member in the voicemail or in his record of transaction from June 26th, Mr. Murchison testified that Customer Service Officers generally do not get into the details of the reasons for decisions when they leave messages for parties. He testified that he wished he had mentioned that the Member made the decision but that he omitted this information. He suggested that he may have omitted the information because it was a busy day.

18When asked why he referred to the decision being an “administrative/management decision” during his conversations with the applicant on June 28th and in the transaction record from that day, Mr. Murchison testified that he said this because Rule 1.1 refers to the way the Board is required to proceed with applications. He testified that he cited Rule 1.1. specifically because it was mentioned by the Member to whom he spoke. Mr. Murchison testified that LTB Members now sign an endorsement form for such a decision but these forms were not yet in use at the time of the events raised in this Application. Mr. Murchison testified that he regretted not mentioning that a Member had made the decision but that it was simply an omission.

19When asked about his recollection about the follow-up conversation he had with the applicant on June 28th, Mr. Murchison did not dispute the accuracy of the transcript of the audio recording submitted by the applicant. Having listened to the audio-recording, I find that it is substantially accurate although some parts are unclear and it is possible that not all of the applicant’s conversation with Mr. Murchison was audio-recorded. Mr. Murchison testified that he remembered telling the applicant that there was a chance the LTB might award costs against him if his filing of separate applications was found to be an abuse of process. Mr. Murchison testified that this information about costs was communicated to him by the Member with whom he had spoken.

20Mr. Murchison said he did remember telling the applicant about Rule 1.1 of the LTB’s Rules of Practice which, he said, permits the LTB to take the most expeditious route for dealing with the high volume of applications it receives. Mr. Murchison testified that he remembered talking to the LTB Member about Rule 1.1.

21When asked who might make various types of decisions that a Customer Service Officer could not make, Mr. Murchison said it depends on the issue. He testified that the LTB’s hearing coordinator would make certain types of rescheduling decisions – for example when there are snow storms or in situations where both parties consent. He testified that other decisions would be made by the Member on duty on a particular day. He testified that the hearing coordinator is often very busy and therefore he often approaches the Member who is on duty.

22In cross-examination, the applicant asked Mr. Murchison why he did not remember exactly who made the decision two days after the voicemail message but could remember in detail what was said when he provided information for the Response filed with the Tribunal 13 months later. Mr. Murchison replied that his recollection was clearer later on because he had to think about the events prior to the filing of the respondent’s Response.

23Ultimately, the applicant ended up withdrawing the four LTB applications referred to above.

Parties’ Submissions

24As noted above, although the applicant took issue with comments that Members made in his hearings before the LTB as well as previous LTB decisions, he conceded that these comments and decisions were covered by adjudicative immunity. The applicant submitted that the LTB’s decision to schedule his four applications for the same hearing day was not covered by adjudicative immunity. He did not dispute that these decisions would be covered by adjudicative immunity if they were made by a Member of the LTB. However, he argued that the decision was in fact an administrative/management decision and not an adjudicative decision made by a Member of the LTB. He charged the respondent with fabricating evidence as he submitted that Mr. Murchison’s testimony contradicted the audio-recordings that were admitted into evidence.

25Counsel for the respondent submitted that Mr. Murchison’s testimony was credible and ought to be believed. She argued that the Tribunal ought to find that the decision was made by a Member of the LTB and therefore subject to the doctrine of adjudicative immunity. The respondent sought to rely upon decisions that have recognized that administrative decision makers are masters of their own procedure and have the power to make procedural decisions regarding the cases before them. She also sought to rely upon previous Tribunal cases that have applied the doctrine of adjudicative immunity: Hazel v. Ainsworth Engineered, 2009 HRTO 2180 (“Hazel”) and Cartier v. Nairn, 2009 HRTO 2208 (“Cartier”).

Findings

26This Tribunal has consistently held that the doctrine of adjudicative immunity applies to neutral third parties deciding a dispute between others. See Hazel, above; Cartier, above; Seberras v. Workplace Safety and Insurance Board, 2012 HRTO 115 at para. 5 and Dopelhamer v. Workplace Safety and Insurance Board, 2010 HRTO 765 at paras. 50-53 (“Dopelhamer”). The doctrine does not only apply to decisions made by adjudicators in the context of hearings. It also applies to 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. See Hazel, above, at para. 98; Taucar v. University of Western Ontario, 2013 HRTO 597 at paras. 48 and 62; Roy v. Human Rights Tribunal of Ontario, 2014 HRTO 423 at para. 31. However, the Tribunal has held that adjudicative immunity does not apply to employees of tribunals who are not independent and impartial decision-makers deciding a dispute between others: see Dopelhamer, above. It may not immunize tribunals in exercising administrative tasks associated with providing their services. See for example Hazel, above at paras. 93-94 and 97.

27As noted above, the applicant does not dispute that the decisions at issue in this case would be covered by the doctrine of adjudicative immunity if they were made by a Member of the LTB. There is no doubt that LTB Members have the power to control their own proceedings and to make procedural rulings in the cases before them. Such procedural decisions can legitimately be said to be integral to the effective exercise of their duties as quasi-judicial decision-makers.

28However, on the evidence before me, I cannot find on the preponderance of possibilities that the decision to schedule the applications to be heard together was made by a Member of the LTB. Although Mr. Murchison’s recollection was that a Member made the decision, this recollection is inconsistent with the evidence admitted at the hearing which was made contemporaneously with the events at issue. On the one hand, Mr. Murchison is best placed to know who made the decision to schedule the applications to be heard together. He is better placed than the applicant or anyone else since he handled the matter and communicated the decision to the applicant.

29On the other hand, Mr. Murchison’s evidence was provided almost two years after the events in question. The information he gave for the preparation of the respondent’s Response was provided more than a year after the events at issue in the Application. By contrast to Mr. Murchison’s recollections long after the fact, the contemporaneous evidence suggests that the decision was an administrative/management decision. The audio recording admitted at the hearing is consistent with the applicant’s testimony that Mr. Murchison told him it was an administrative/management decision. Mr. Murchison also stated in his record of transaction that the decision was an administrative/management decision. Although Mr. Murchison did refer to Rule 1.1. of the LTB’s Rules of Practice, at no point did he mention that the decision was made by Member. Even if it was the case that Mr. Murchison consulted a Member at the time, this does not necessarily lead to the conclusion that the decision itself was ultimately made by the Member, particularly in circumstances such as these where Mr. Murchison himself characterized the decision at the time as administrative/management in nature. In these circumstances, I cannot find that the preponderance of the evidence supports the respondent’s position that the decision was made by an LTB Member.

30As noted above, the Tribunal has held that the doctrine of adjudicative immunity does not apply to immunize tribunals in exercising administrative tasks associated with providing their services. Based on the evidence before me, I cannot find that the LTB’s decision to schedule the applicant’s applications to be heard together was an adjudicative decision that is covered by the doctrine of adjudicative immunity.

Order

31For the reasons set out above, the applicant’s allegations in relation to the LTB’s decision to schedule his four applications for the same hearing day fall within the Tribunal’s jurisdiction and are not shielded from scrutiny because of the doctrine of adjudicative immunity. To the extent that the applicant raised other allegations in his Application and at the preliminary hearing regarding comments and decisions made by LTB Members in hearings, these actions are covered by the doctrine of adjudicative immunity and cannot be challenged through this Application.

Next steps

32The Tribunal will schedule a merits hearing into this Application. Among other things, at the hearing, the applicant will have to establish that he has a disability and that the respondent discriminated against him because of that disability. I note that the parties take different positions as to whether the LTB advised the applicant that he could raise any accommodation requests at the start of the hearing. They also take different positions as to whether other forms of reasonable accommodation were possible short of scheduling separate hearing days. These will be some of the issues to be addressed in the hearing on the merits.

33I am not seized of this matter.