HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Laksaman Mihindukulasuriya
Applicant
-and-
Ontario Labour Relations Board
Respondent
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Mihindukulasuriya v. Ontario Labour Relations Board
WRITTEN SUBMISSIONS
Laksaman Mihindukulasuriya, Applicant
Self-represented
1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect goods, services and facilities because of disability and age.
2The applicant identifies himself as having several mental health conditions. The applicant states that he filed a Duty of Fair Representation (“DFR”) application at the Ontario Labour Relations Board (“OLRB”) against his trade union. The OLRB held a hearing regarding the DFR application in June 2015. The applicant states that he was unable to present his case properly because of limitations caused by his mental health conditions. Time passed and the applicant continued to take his medication. One a day in December 2016 when he was feeling better, he checked his old e-mail messages and discovered that the OLRB had dismissed his DFR application. The applicant immediately contacted the OLRB and asked for assistance in filing a request for reconsideration. An OLRB officer advised the applicant to file an “A-49” form and to explain what he expected the OLRB would do for him and to explain how his illness had affected him during the DFR hearing. The applicant followed this advice, but the OLRB responded by confirming its decision to dismiss the DFR application without providing him with another opportunity to present his case.
3By letter dated April 10, 2017 the Tribunal provided the applicant with a Notice of Intent to Dismiss the Application (the “Notice”) because
while your response to question #7 of the Application alleges that the last incident of discrimination you experienced occurred on December 29, 2016, a review of your Application indicates that it is either not clear what incident of discrimination is alleged to have occurred on this date or how the incident described as occurring on that date constitutes an incident of discrimination within the meaning of the Code. See for example Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241; Mafinezam v. University of Toronto, 2010 HRTO 1495; and Garrie v. Janus Joan Inc., 2012 HRTO 1955.
the respondent is an arbitrator, adjudicator or judge. The HRTO has stated that it has no jurisdiction to hear applications against courts and tribunals based on the execution of adjudicative duties or decision-making because of the doctrine of judicial or adjudicative immunity: 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.
4In the Notice, the Tribunal directed the applicant to file submission responding to the issues identified in the Notice by May 10, 2017. The applicant filed his submissions on September 11, 2017.
submissions
5The applicant’s submissions indicate that he filed a second request for reconsideration with the OLRB on or about December 28, 2016 and that he also filed medical information to support his submissions. The applicant submitted that, nonetheless, the OLRB did not afford him another hearing to address his DFR application.
Analysis and Decision
6An application will only be dismissed at a preliminary stage if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. See Masood v. Bruce Power, 2008 HRTO 381.
7It is clear on the face of the Application that the applicant’s allegations concern an adjudicative decision by the OLRB to dismiss his DFR application. The doctrine of adjudicative immunity prohibits legal proceedings against judicial and quasi-judicial actors that 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 and quasi-judicial actors are free to execute their decision-making duties with independence and without fear of consequences. See Taucar v. University of Western Ontario, 2013 HRTO 597; Hazel v. Ainsworth Engineered, 2009 HRTO 2180; and Cartier v. Nairn, 2009 HRTO 220). The doctrine of adjudicative immunity applies to quasi-judicial decisions of this Tribunal. Consequently, I find that it is plain and obvious that this Application is outside of the Tribunal’s jurisdiction.
Order
8The Application is dismissed.
Dated at Toronto, this 28th day of September, 2017.
“Signed by”
Douglas Sanderson
Vice-chair