Keeler v. Human Rights Tribunal of Ontario, 2015 HRTO 851

Human Rights Tribunal of Ontario

B E T W E E N:

Amanda Elisabeth Keeler Applicant

-and-

Human Rights Tribunal of Ontario Respondent

DECISION

Adjudicator: Caroline Rowan Date: 25 June, 2015 Citation: 2015 HRTO 851 Indexed as: Keeler v. Human Rights Tribunal of Ontario

Introduction

1This Application alleges discrimination with respect to goods, services and facilities because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended. More specifically, the applicant complains that the Vice-Chair of the respondent, Human Rights Tribunal of Ontario (the “HRTO”), who was assigned to mediate the applicant’s complaint against her employer failed to accommodate the applicant’s disability during the second mediation session held on or about May 29, 2014. The applicant attended that mediation session with counsel and ultimately signed a settlement agreement she now believes she should not have signed.

2On December 11, 2014, the Registrar issued a Notice of Intent to Dismiss (“NOID”) indicating that it appears that the Application is outside of the Tribunal’s jurisdiction because the respondent is an arbitrator, adjudicator or judge. The applicant provided written submissions in response to the NOID.

NATURE OF THE APPLICATION AND SUBMISSIONS OF THE APPLICANT

3In her application and submissions in response to the NOID, the applicant contends that she has cognitive impairments which required time to process information and that she had no business entering into a settlement agreement at the mediation session held on May 29, 2014. The applicant suggests that she told her lawyer in advance of the mediation that, although she would show up for the mediation, she was not sure that her health condition would allow her to tolerate the whole session from 10 a.m. to 5 p.m. and that, given her condition, it would be in her best interest not to make any type of decision. According to the applicant, she told her lawyer that she needed and expected her lawyer to be her voice and advocate throughout the process. The applicant also states that she told the mediator in advance of the second mediation session that it seems costly to proceed with a second mediation when they did not have a clear platform for mediating given that certain information was not yet known concerning her abilities as it relates to “competitive employment” in general and in her known occupation of nursing.

4The applicant’s complaints against the mediator are that the mediator did not begin the second mediation with both parties together in order to review the rules and what the mediation would cover specifically. In addition, according to the applicant, when she asked the mediator “what about my disability”, the mediator’s response was “you have a lawyer that is good enough”. The mediator also suggested that the applicant read the draft agreement with her lawyer but that she declined. The applicant states that she did so because she knew that, because of her disability, it would be best to let her lawyer read it herself and do what she is trained to do. As a consequence, the mediator went beside her lawyer and started reading the agreement and pointing things out and discussing things with her lawyer. The applicant states that she was cognitively impaired and had no business entering into any agreement and, as such, she believes the agreement should be considered void.

DECISION

5The doctrine of judicial immunity applies to the actions of judges and adjudicators while acting in their adjudicative capacity, regardless of whether or not they may be said to have committed an error of law or otherwise committed an error which may be the subject of remedy before the courts on appeal or judicial review. The doctrine prohibits legal proceedings against judicial actors based on their actions as adjudicators or decision-makers and has been applied by this Tribunal to shield administrative tribunals (which would include the HRTO) and courts from Applications concerning the actions of judges and adjudicators while acting in their adjudicative capacity.

6The doctrine is rooted in the principle of judicial independence, which is meant to ensure that judicial actors are free to execute their decision-making duties, including decisions made about the conduct of the hearing, with independence and without fear of consequences (see Cartier v. Nairn, 2009 HRTO 2208). The purpose of the doctrine is to ensure independence of the decision-making and dispute resolution process. It consequently applies to those functions which are integral to the dispute resolution process and to the effective exercise of the duties of an adjudicator or mediator (Hazel v. Ainsworth Engineered, 2009 HRTO 2180).

7In Karzi v. Jones, 2010 HRTO 982, the Tribunal reviewed the jurisprudence as it relates to the application of the doctrine of judicial immunity to a mediator. In that case, the Tribunal found it appropriate to dismiss a complaint made against a mediator for comments made during a mediation on the ground that the mediator is covered by immunity, reasoning as follows at paras. 6 - 10:

In Hazel v. Ainsworth Engineered, 2009 HRTO 2180 , the Tribunal determined that the doctrine of judicial immunity applied to protect arbitrators and mediators from human rights claims arising out of the exercise of their decision-making and dispute resolution functions:

Having considered the arguments and jurisprudence, I accept that arbitrators and mediators are entitled to immunity from human rights claims, at least with respect to the exercise of their decision-making and dispute resolution functions. Regarding arbitrators, I accept that in considering evidence and submissions, and making decisions, they are exercising a quasi-judicial function comparable to that of judges, and are therefore entitled to immunity.

With respect to mediators, I find that immunity extends to protect the mediator from claims arising from the exercise of his or her functions in assisting the parties in reaching a resolution of the dispute, and in facilitating the settlement discussions. I would also note that further support for immunity for labour mediators is found in section 120(2) of the Labour Relations Act:

The following persons are not competent or compellable witnesses before a court or tribunal respecting any information or material furnished to or received by them while acting within the scope of their employment under this Act:

2. A person appointed by the Minister under this Act or under a collective agreement to effect the settlement of a dispute or the mediation of a matter

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.

Although the mediation in question in this Application did not arise under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, as amended, I am satisfied that the considerations which led to the application of the doctrine of judicial immunity to the labour arbitrator/mediator in Hazel also support its application to the respondent Fidler.

The allegations against the respondent Fidler arise out of the exercise of dispute resolution functions during a mediation. The mediation was an alternative dispute resolution process in connection with legal proceedings filed by the applicant over a motor vehicle accident. The settlement documents reference claims filed with the Superior Court of Justice and a claim registered with the Financial Services Commission of Ontario. The applicant describes the respondent Fidler as being "from the Financial Services Commission of Ontario", but in fact he is an independent mediator retained by the parties to a lawsuit to assist in resolving a civil claim.

The Agreement to Mediate contains the parties' agreement to use the mediation services of the respondent Fidler. It confirms that the process is entirely voluntary, and that the mediation conference can be terminated at any time by any party, his or her counsel, or the mediator. Further, the agreement sets out clearly the parties' agreement to preserve the confidentiality of discussions at mediation.

I find no meaningful distinction between the mediation described in Hazel, above, and the one conducted by the respondent Fidler. Apart from some of the characteristics described above, both were directed towards the resolution of legal claims before a court or arbitrator.

8In that case, like the present one, the application arose out of what was alleged to have occurred during the course of a voluntary mediation, which process resulted in a settlement of the claim in question. Similarly, in the present case, the manner in which the mediator chose to conduct the mediation, whether by commencing with a plenary session or by reviewing the draft settlement agreement with the applicant’s lawyer or otherwise, is integral to the dispute resolution process and is, in my view, covered by immunity. In addition, like in Hazel v. Ainsworth Engineered, cited above, the applicant was represented by counsel throughout and there is no suggestion in the present case that the applicant made any specific accommodation request prior to, or at the mediation. In all the circumstances, I find that the applicant’s complaint concerns how the Vice-Chair exercised her dispute resolution functions and does not relate to matters which fall outside of the scope of her activities as a mediator engaged in the mediation process.

9Based on the Application and the applicant’s submissions, it is plain and obvious that the Application falls outside of the jurisdiction of the Tribunal. This Application is therefore dismissed.