Moncur v. Bhattacharjee, 2017 HRTO 938

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Catherine Moncur Applicant

-and-

Ken Bhattacharjee Respondent

DECISION

Adjudicator: Jacek Janczur Date: July 25, 2017 Citation: 2017 HRTO 938 Indexed as: Moncur v. Bhattacharjee

WRITTEN SUBMISSIONS

Catherine Moncur, Applicant David Moncur, Representative

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 (the "Code").

2The applicant filed an Application (the "Club Application") against the Beach Grove Golf and Country Club alleging that it had contravened the settlement of an earlier proceeding and had subjected her to reprisals for claiming and enforcing her rights under the Code.

3The Club Application was heard and decided by Vice-chair Ken Bhattacharjee, the respondent to this Application. See Moncur v. Beach Grove Golf and Country Club, 2014 HRTO 764.

4This Application alleges that the respondent discriminated against the applicant on the ground of disability as a person with an acquired brain injury and as a female throughout the hearing and in his decision.

5On March 23, 2017, the Tribunal issued a Notice of Intent to Dismiss ("NOID") on the basis that the Tribunal has no jurisdiction to hear applications against tribunals based on the execution of adjudicative duties or decision-making because of the doctrine of judicial or adjudicative immunity.

6The applicant filed submissions in response to the NOID.

7The applicant contends that judicial or adjudicative immunity does not apply in this case. According to the applicant, 1) the immunity applies only to judges and not to adjudicators of administrative tribunals; 2) the immunity does not apply where there has been a violation of natural justice arising from a reasonable apprehension of bias or a lack or procedural fairness.

8For the reasons that follow, the Application is dismissed as I find that the respondent enjoys judicial or adjudicative immunity.

DECISION AND ANALYSIS

9The question of the jurisdiction of the Tribunal to deal with applications based on the exercise of the adjudicative function of courts and tribunals was dealt with by the Tribunal in Cartier v. Nairn, 2009 HRTO 2208. In Cartier, the respondent was a labour arbitrator appointed under a collective agreement and the Labour Relations Act, 1995, S.O. 1995, c. 1. The applicant alleged that the she has been subjected to discrimination when the respondent dismissed her grievance contesting the termination of her employment against her former employer. The Tribunal explained that 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. (para. 12)

10In the same decision, the Tribunal went on at para. 19 to note the decision of the Supreme Court of British Columbia in Gonzalez v. Ministry of Attorney General, 2009 BCSC 639, which specifically considered the application of judicial immunity to decision-makers from complaints that they have violated human rights legislation. There, the court found that judicial immunity applied even in the face of allegations of human rights violations.

11And, at para. 16, the Tribunal explained that

the concept of judicial immunity has been held to protect not only judges from legal proceedings based on the execution of their duties as judicial actors, but also tribunals and other statutory-decision makers [emphasis mine]. In Agnew v. Ontario Association of Architects (1987), 1987 CanLII 4030 (ON SC), 64 O.R. (2d) 8 (Div. Ct.) at p. 14, Campbell J. of the Ontario Divisional Court held that judicial immunity applies not only to judges, but also to members of administrative tribunals. In that case, there had been an attempt to subpoena members of a committee of the Ontario Association of Architects about a determination they had made pursuant to decision-making authority accorded them under the Architects Act, 1984, S.O. 1984, c. 12:

The authorities do not make it clear whether this general rule applies equally to members of administrative tribunals. In logic, there is no reason why it should not. The mischief of penetrating the decision process of a tribunal member is exactly the same as the mischief of penetrating the decision process of a judge[.]

12In Hazel v. Ainsworth Engineered, 2009 HRTO 2180, the Tribunal considered the application of the doctrine of judicial immunity to labour arbitrators and administrative tribunals, commenting at para. 84 that

In general, there is no good reason why the immunity provided to judges, the purpose of which is to ensure independence in decision-making and finality of process should not extend to others who exercise quasi-judicial adjudicative functions. Administrative tribunals and labour arbitrators play a critical role within the justice system. They are called upon to determine serious disputes between parties, and adjudicate fundamental rights of citizens. Independence in thought and decision-making is no less important for a member of a quasi-judicial tribunal or an arbitrator than for a judge. Finality of the decisions (subject to rights of appeal or review) is no less important for the parties.

13On the basis of the above, I find that the applicant's claim that judicial or adjudicative immunity does not apply to the respondent must fail.

14As previously stated, the applicant in this case also claims that judicial immunity does not apply where the decision maker has breached the rules of natural justice.

15This question was considered in Lemieux v. Howe, 2010 HRTO 1596. There, the applicant alleged that a labour arbitrator appointed to hear a termination grievance had not followed the rules of natural justice for, among other things, failing to adjourn the hearing. When considering whether a breach of natural justice, if it had occurred, would deprive the arbitrator of judicial immunity, the Tribunal had this to say (paras 10-11):

The applicant in this case asserts that the respondent is not protected by judicial immunity because he did not follow the rules of natural justice to ensure that the applicant's right to be heard was protected. This is a doubtful proposition. In Baryluk (Wyrd Sisters) v. Campbell, 2008 CanLII 55134, the Ontario Superior Court, while recognizing that immunity does not extend to "purely personal acts", held that "there is an absolute immunity for acts done in the course of or in connection with ... judicial duties." Moreover, the Court specifically rejects the suggestion that mere allegations in pleadings can place judges in the position of having to defend the manner in which they have discharged their judicial duties in legal proceedings commenced by dissatisfied litigants (at para. 31).

A plaintiff cannot successfully circumvent judicial immunity by merely pleading bald allegations of misconduct including excess of jurisdiction, abuse of process, malice or bad faith. If the law were otherwise, it would render the immunity meaningless and impair judicial independence due to the threat of personal liability by the simple plea of malicious intent. (Baryluk, supra, at para. 27)

It seems to me that the above proposition applies with equal force here, where the applicant pleads that the respondent breached the rules of natural justice and seeks to make him personally liable for such alleged errors. The Superior Court in Baryluk reiterates that errors made in a judicial capacity may be corrected on appeal or judicial review, as the case may be, but not by civil actions brought against the adjudicator personally: Royer v. Mignault, [1988] A.Q. No. 47 at para. 5-6, as cited in Baryluk, supra, at para. 25. (See also Agnew v. Ontario Association of Architects (1987), 1987 CanLII 4030 (ON SC), 64 O.R. (2d) 8 (Div. Ct.) at p. 28, as cited in Cartier, supra, at para. 17).

16I agree with the result in Lemieux and adopt the reasons for decision. As a result, I find that the allegations that the respondent in this Application denied the applicant natural justice during the course of her hearing does not preclude the application of judicial immunity to the respondent.

17As pointed out in Lemieux, if the applicant was dissatisfied with the decision rendered by the respondent, her proper course of action would have been to initiate an application for judicial review of his decision, not an application against the respondent before this Tribunal.

ORDER

18Accordingly, the Application is dismissed.