HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Thomas Milne
Applicant
-and-
Court of Appeal for Ontario
Respondent
DECISION
Adjudicator: Josée Bouchard
Indexed as: Milne v. Court of Appeal for Ontario
Written Submissions
Thomas Milne, Applicant ) Self-represented
Introduction
1This is an Application filed on December 7, 2015 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 creed and family status.
2The applicant alleges that the Court of Appeal for Ontario (“Court of Appeal”) rendered an unfair and delayed decision in his case. The applicant submits that the Court of Appeal deliberated for more than eight months, an unusually long period to uphold a conviction unanimously. The applicant alleges that the Court of Appeal’s decision to uphold his conviction was largely based on his association with a religious organization, the “Children of God”. The applicant further alleges that as a result of the Court of Appeal’s decision, he remained separated from his family for a prolonged period of time. Finally, the applicant submits that, because the Court of Appeal rendered a unanimous decision in his case, he lost his automatic right of appeal to the Supreme Court of Canada.
3On January 14, 2016, the Tribunal issued a Notice of Intent to Dismiss the Application (“NOID”) on the basis that the Application appears to be outside the Tribunal’s jurisdiction. Specifically, the NOID noted that the respondent is an arbitrator, adjudicator or judge and the Tribunal has often stated that it has no jurisdiction to hear applications against courts and tribunals related to the execution of adjudicative duties or decision making because of the doctrine of judicial or adjudicative immunity. The Tribunal directed the applicant to provide written submissions regarding its jurisdiction by February 15, 2016.
4The applicant filed limited submissions indicating that he understands the Application to be outside the jurisdiction of the Tribunal.
Decision and Analysis
5At this preliminary stage in the proceeding, the Tribunal will dismiss an application only if it is “plain and obvious” that it is outside the Tribunal’s jurisdiction. I find that it is plain and obvious that the actions of the Court of Appeal in executing its decision making duties are outside the Tribunal’s jurisdiction because of the doctrine of judicial immunity.
6In Cartier v. Nairn, 2009 HRTO 2208, the Tribunal described the doctrine of judicial immunity as follows, at paragraphs 12-15:
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 threatn 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?”
7The Court of Appeal’s actions in executing its decision making duties come squarely within the doctrine of judicial immunity and it is plain and obvious that the Tribunal has no jurisdiction to hear this Application.
8The Application is dismissed.
Dated at Toronto, this 26th day of February, 2016.
“signed by”
Josée Bouchard
Vice-chair