Matthews v. The Manufacturers Life Insurance Company, 2017 HRTO 978

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Philip Matthews Applicant

-and-

Manufacturers Life Insurance Company (Manulife Financial) and Human Rights Tribunal of Ontario Respondents

DECISION

Adjudicator: Sarah Atkinson Date: August 1, 2017 Citation: 2017 HRTO 978 Indexed as: Matthews v. The Manufacturers Life Insurance Company

WRITTEN SUBMISSIONS

Philip Matthews, Applicant Self-represented

Introduction

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The applicant filed an earlier Application on January 26, 2015, alleging discrimination with respect to services because of disability, contrary to the Code (the "Initial Application").

3The Tribunal held a Summary Hearing by teleconference on April 6, 2016, and issued its decision on June 23, 2016 (the "Summary Hearing"): see Matthews v. The Manufacturers Life Insurance Company, 2016 HRTO 850. The Tribunal dismissed the Application on the basis that the applicant had abandoned his Application when he hung up the phone part-way through the Summary Hearing. The Vice-chair also addressed the parties' submissions and found the Application had no reasonable prospect of success.

4The applicant filed a Request for Reconsideration on July 22, 2016, relying on Rule 26.5 (c) and (d). The Tribunal denied the Request, ruling that the applicant had failed to establish that the Decision was in conflict with established jurisprudence or Tribunal procedure, that it involved a matter of general or public importance, or that other factors existed that outweighed the public interest in the finality of Tribunal decisions: see Matthews v. The Manufacturers Life Insurance Company, 2016 HRTO 1112.

5On or about June 2, 2016, the Applicant filed this Application with the Tribunal, alleging that in the course of the Summary Hearing, the respondent Human Rights Tribunal of Ontario ("HRTO") and the respondent Manufacturers Life Insurance Company ("Manulife") discriminated against him with respect to services because of disability. The allegations against the respondent Manulife appear to be based primarily on allegations against its counsel.

6In reviewing the Application, it appeared to the Tribunal that the Application might be outside the Tribunal's jurisdiction because:

• the issues raised related to the conduct of respondent counsel, i.e. a lawyer representing a party in another legal proceeding; and
• the/a respondent is an arbitrator, adjudicator or judge.

The Tribunal issued a Notice of Intent to Dismiss ("NOID") on October 5, 2016, seeking submissions from the applicant in respect of both issues. The applicant filed written submissions on or about November 1, 2016, which I have considered in coming to my decision.

7The question before me is whether the Application falls within the Tribunal's jurisdiction, and I find that the Tribunal does not have jurisdiction to decide this Application. The other allegations raised in this Application have been previously addressed in the Tribunal's Summary Hearing decision issued on June 23, 2016, and/or the Reconsideration decision issued on August 22, 2016.

SUBMISSIONS OF THE APPLICANT

8The allegations against the HRTO adjudicator set out in the Application are based upon what occurred during the teleconference hearing held on April 4, 2016, following which the Tribunal dismissed the Initial Application. In particular, the applicant submits that as a result of this Tribunal's decision to proceed with the teleconference hearing in the face of a request for accommodation, and by the HRTO adjudicator and respondent Manulife's counsel not each having available their own psychiatric consultant to address the applicant's claims, the adjudicator and respondent counsel violated his right to accommodation.

9The applicant's written submissions with respect to the NOID and the issue of the Tribunal's jurisdiction in this matter provided little by way of a substantive response. The applicant argues that his Application against the HRTO and Manulife was for abuse and incompetence, and that it "was never intended and does not … relate in any way to 'the protected quasi-judicial role' of either the [HRTO] Vice-Chair or respondent [Manulife's] counsel". He submits that the main purpose of the Application is to address the HRTO Vice-chair's alleged discriminatory action in denying what he alleges was a long-standing request for "administrative accommodations" at what the applicant describes as "kangaroo court style HRTO hearings." He further alleges that the adjudicator lacked the mental competence and ability, and the relevant medical advice, to appropriately adjudicate in respect of his severe mental illness and the associated impact of his severe physical disabilities.

10In his response to the NOID, the applicant further alleges that the decision to deny what he describes as his "administrative accommodation" request clearly emanates from the HRTO Registrar's office. The applicant submits that he was unable to find any legislative basis for immunity or protection for administrative staff and he requests as an accommodation that his matter be "reviewed by someone who does not have any appreciable conflict".

11In the applicant's view, the suggestion that the present Application could be dismissed because of judicial immunity contributes to a course of continuing and ongoing discrimination against him, since 2010, on the basis of disability.

DECISION

Issues raised relating to the conduct of Respondent Manulife's counsel

12In the applicant's submissions in response to the Tribunal's NOID, little additional substantive information is provided by the applicant in support of his claim that he can properly bring an application against respondent Manulife's counsel.

13This Tribunal has held that it has no jurisdiction over the conduct of a lawyer retained by a party other than the applicant, on the basis that counsel is not providing a "service" to an opposing party. The only connection that respondent Manulife's counsel in the present case has to this Application is that they were retained by the respondent Manulife, and thereby participated in the Summary Hearing for the Initial Application. This Tribunal has held that such a relationship is not one covered by the Code. See Belso v. York Region Police, 2009 HRTO 757; Cooper v. Pinkofskys, 2008 HRTO 390; Polat v. Lin, 2017 HRTO 682.

14The Application as against the respondent Manulife is therefore dismissed as being outside this Tribunal's jurisdiction.

Issues raised relating to the conduct of the HRTO

15The allegations against the HRTO raise the issue of this Tribunal's jurisdiction to deal with applications based on the exercise of adjudicative functions by courts and tribunals. The doctrine of adjudicative immunity also covers an allegation that a Vice-chair acted improperly, although in the present Application, the applicant did not personally name the Vice-chair who decided the Initial Application. The Tribunal has considered this issue in a number of instances and has found that "the exercise of adjudicative functions by courts and tribunals, particularly the 'content, reasons and result' of adjudicative decisions, do not fall within the definition of 'services' in the Code and are therefore not within the Tribunal's jurisdiction." See Cartier v. Nairn, 2009 HRTO 2208 at para. 10 and the cases cited therein.

16As noted in the Tribunal's NOID, the Tribunal has found that it has no jursidcition to hear appplications against courts and tribnals based on the execution of adjudicative duties or decision-making because of the doctrine of judicial or adjudicative immunity. That doctrine was described and explained in the Tribunal's decision in Cartier, supra, at paragraphs 12-19:

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.

Recently, the Supreme Court of British Columbia revisited the question of whether judicial immunity protects judicial actors from complaints that they have violated human rights legislation. In Gonzalez v. Ministry of Attorney General, 2009 BCSC 639, the Court upheld a decision of the British Columbia Human Rights Tribunal in which it found that it lacked jurisdiction to deal with part of a complaint alleging discrimination by a provincial court judge on the basis of disability in respect of employment and services. In that case, the judge had been accused of discriminating against legal counsel in a hearing under the Child Family and Community Service Act, R. 1996, c. 46, when he made comments about how accommodation of her physical disability was prolonging the proceedings. The basis for the Tribunal's decision that it did not have jurisdiction in that matter was that the judge was protected from human rights complaints by judicial immunity.

The British Columbia Court reached its conclusion that the doctrine of judicial immunity protects judicial actors from complaints under human rights legislation cognizant of the public importance and quasi-constitutional status of human rights legislation:

Whether he was wrong or right, committed a human rights violation or simply acted inappropriately, the presiding judge said these things in the course of carrying out his legal duties.

There is no question that human rights legislation is quasi-constitutional and should be given a broad and liberal application. However, judicial immunity is also a constitutional principle and, as the Supreme Court of Canada held in Morier, the immunity of judges must be preserved even when it is alleged they have violated human rights. Judicial immunity is a necessary adjunct to the independence of the judiciary. Any erosion of this principle causes more detriment to the public's confidence in the judiciary than would result from insulating any particular judge from civil liability for wrongful acts in the course of his duties. As Lord Bridge of Harwich said in McC v. Mullan, [1984] 3 ALL E.R. 908 at p. 916:

The principle underlying this rule is clear. If one judge in a thousand acts dishonestly within his jurisdiction to the detriment of a party before him, it is less harmful to the health of society to leave that party without a remedy than that nine hundred and ninety-nine honest judges should be harassed by vexatious litigation alleging malice in the exercise of their proper jurisdiction.

Moreover, 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. In Agnew v. Ontario Association of Architects (1987), 1987 CanLII 4030 (ON HCJ), 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.

Judicial immunity has also been extended to members of the Immigration and Refugee Board, Ermina v. Canada (Minister of Citizenship and Immigration (1998), 1998 CanLII 8969 (FC), 167 D.L.R. (4th) 764 (F.C.); the Law Society of Upper Canada in respect of its decision-making disciplinary processes and investigative functions, Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; and members of provincial commissions of public inquiry, Morier v. Rivard, 1985 CanLII 26 (SCC), [1985] 2 S.C.R. 716.

17Both the Tribunal's decision in Cartier, and the BCSC's decision in Gonzalez, were cited with approval in the recent Supreme Court of Canada's decision in Ernst v. Alberta Energy Regulator, 2017 SCC 1 at paragraphs 50-51.

18Judicial immunity applies even where a dissatisfied party alleges that the adjudicator did not follow the rules of natural justice: see Guydos v. Workplace Safety and Insurance Appeals Tribunal, 2013 HRTO 1371, and the cases cited therein at para. 31. In that decision, the Tribunal found that the doctrine of judicial immunity prevented the applicant from pursuing a human rights application against a WSIAT panel who had determined that it was appropriate to have the applicant participate in her WSIAT appeal by teleconference.

19Turning to the case at hand, the applicant contends that he was disadvantaged by the HRTO's decision that it was appropriate to have the applicant participate in the Summary Hearing by teleconference. The important question is whether the decision in question is protected by judicial immunity. In this instance, the HRTO adjudicator was acting in the exercise of her duties as a Vice-chair appointed to the Human Rights Tribunal of Ontario in making a procedural ruling with respect to the hearing. The doctrine of judicial immunity prevents the applicant from pursuing a human rights Application based on a procedural ruling made by the Tribunal in the course of exercising its quasi-judicial functions. I therefore find that the applicant's Application as against the HRTO is barred by the common law doctrine of judicial immunity.

20Finally, I turn to the applicant's submission that the decision to deny his accommodation request was made by HRTO staff, and his request that the matter be reviewed by someone with no "appreciable conflict". With regard to the former submission, the actual submission made by the applicant is that the NOID was issued by Tribunal staff and represents a denial of accommodation. However, the applicant has not indicated in his submission how either the decision to issue the NOID or the opportunity afforded to him to file written submissions in response to the NOID constitutes discrimination under the Code or a failure by this Tribunal to provide him with accommodation for any disability-related needs, and in any event, he has not provided any documentation to support what disability-related needs he is alleging that this process fails to accommodate. In relation to the issues raised in the present Application, I note that both the original Decision and the Reconsideration decision are clear that the decision to proceed with the initial Summary Hearing was made by the adjudicator, not by Tribunal staff, and is therefore an exercise of the Tribunal's quasi-judicial function. For the reasons set out above, that decision is protected by judicial immunity.

21With respect to the applicant's request for independence of the decision-maker, the Supreme Court of Canada has held that judges and adjudicators are inherently impartial: see Wewaykum Indian Band v. Canada, 2003 SCC 45. Nevertheless, the matter was assigned to me as a part-time Member of the HRTO. As such, I do not have regular day-to-day dealings with the Registrar or other HRTO staff. I had no involvement in the Initial Application filed by the applicant, or the present Application, prior to its assignment to me, nor have I had any contact concerning the present Application (or the Initial Application) with the Vice-chairs who made the initial Summary Hearing decision or the Reconsideration decision. The applicant's request was therefore satisfied.

ORDER

22The Application is dismissed as not being within this Tribunal's jurisdiction.