Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human rights complaints – Discrimination – Disability – Duty to accommodate – Judges – Judicial immunity – Judicial review – Jurisdiction of tribunal – Standard of review – Correctness
Gonzalez v. British Columbia (Attorney General),  B.C.J. No. 955, British Columbia Supreme Court, May 13, 2009, C.J. Bruce J.
The Petitioner is a lawyer who was involved in a car accident in 2006. The accident caused serious injuries to her and she suffered from chronic pain that impaired her ability to work full-time. Her physicians advised her to limit her hours of work to 2-3 hours, five days per week. For the courts that she appeared in, the Petitioner requested accommodation. The accommodation included allowing her to schedule her trials and applications for half-days instead of full days.
In September 2007, the Petitioner appeared in a B.C. Provincial Court for a family law matter. She represented a mother who opposed the Ministry’s plan to have her children adopted by the family who was caring for the children (on behalf of the Ministry). During the proceeding, an issue arose about the late disclosure of the Ministry’s material and also about the timeline for the Petitioner to provide her client’s witness list. The trial judge, in addressing a potential adjournment due to the Ministry’s late disclosure, insisted that the Petitioner address the issue of her client’s witness list. The trial judge suggested that the matter had been taking far too long and that perhaps alternate counsel could be retained. The Petitioner addressed the late disclosure again and also commented that the court had an obligation to accommodate her disability.
In response to the Petitioner talking about accommodation, the trial judge stated “this is not just about you and your disability…This is about moving the case along where three children are in limbo…” The Petitioner commented that her client had a right to counsel of her choice and that there would be delays if new counsel were appointed. In response, the trial judge advised the Petitioner that he recognized she had a right to make a living but he suggested, “…maybe you should rethink when you involve yourself in these cases of this nature what’s involved here.”
In late 2007, the Petitioner met with the Chief Judge about her experience. The Petitioner and the Chief Judge initially exchanged correspondence about setting up a meeting to resolve the matter informally but the meeting did not happen. The Petitioner made a complaint to the B.C. Human Rights Tribunal. At the screening stage, the Tribunal dismissed her claim on the basis that the Tribunal did not have jurisdiction over the matter since the judge was protected by judicial immunity. The Petitioner sought judicial review of that dismissal and alleged that the Tribunal erred in law when it decided that it did not have jurisdiction.
The standard of review was correctness according to the Administrative Tribunals Act. The first issue was whether provincial court judges are protected by judicial immunity for human rights violations committed in the course of their duties. As a preliminary matter, the Court found that judicial independence is fundamental to provincial court judges and the principle of judicial immunity arises directly from judicial independence. Section 42 of the Provincial Court Act codifies the principle of judicial immunity.
The Petitioner alleged that judges are not protected by judicial immunity when they stray outside their jurisdiction by committing human rights violations unrelated to the case before them. The Court considered various authorities regarding the issue of whether, and to what extent, judicial immunity is absolute. There are authorities indicating that judges may lose the protection of judicial immunity when acting outside their jurisdiction or when acting in bad faith.
The Court rejected the Petitioner’s argument that the judge acted without jurisdiction because his words were spoken in a courtroom, in the context of a legal proceeding, and in respect of the timing of a case that he was hearing. The judge was not acting in a purely personal capacity when he made the impugned comments.
The second issue is whether the judge was acting as an agent of the crown and thus liable to civil proceedings on that basis. The Court rejected this argument because holding a judge to be an agent of the crown would be inconsistent with the principle of judicial independence.
In obiter, the Court addressed the issue of whether there is a bad faith exception to the principle of judicial immunity. The Court commented that there were more appropriate means for the redress of judicial misconduct. The Provincial Court Act, for instance, confirms the authority of the Judicial Council to inquire into the misconduct of judges. The Judicial Council has a duty to investigate complaints once they are brought to the Council’s attention by the Attorney General or the Chief Judge.
The Petitioner’s application was dismissed.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at email@example.com or review his biography at http://www.harpergrey.com.
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