A judge has immunity. Stock photo by Getty Images
You can sue doctors, dentists, architects, engineers and almost any professional if their negligence or bad judgment affects you. You can even sue your own lawyer.
But if you encounter a judge who seems unfair or incompetent, your options are more limited.
Judges are protected by “judicial immunity,” which means you can’t sue or file a human rights complaint against them for something they do in their adjudicative role.
This doesn’t absolve judges from criminal acts, but does free them from any civil liability for their behaviour on the bench.
It’s a notion that’s been frequently challenged but consistently upheld by courts and human rights tribunals around the country.
Some examples include Royer v. Mignault, a 1988 Quebec case where a lawyer sued a judge for defamation after the judge slandered him in court; or Lockwood v. Provincial Court Judge, where a plaintiff said a judge mocked his race and disability.
Both cases were dismissed owing to judicial immunity.
In fact, that immunity can extend beyond just judges. Judicial immunity can apply to arbitrators and human rights tribunals too.
Ontario’s Human Rights Tribunal said this in 2009 when it heard Cartier v. Nairn, a discrimination complaint against a labour arbitrator.
The province’s Human Rights Code says every person has a right to equal treatment “in respect to goods, services and facilities,” but the decision said courts and tribunals don’t count as a “service,” so aren’t covered by the code.
The idea isn’t that judges and arbitrators are infallible, but that they need “judicial independence” to do their jobs effectively. As Cartier said, that independence “is to ensure that judicial actors are free to execute their decision-making duties with independence and without fear of consequences.”
That doesn’t mean your case is sunk due to a bad or biased judge. You can still appeal to a higher court, although that likely involves more legal fees and far more time. If a bad judge really did botch your case, an effective appeal will turn things in your favour.
Also, it doesn’t mean that judges are free to misbehave. Like lawyers, judges are expected to adhere to certain standards of conduct. If you believe a judge has behaved improperly, you can file an official complaint with the Canadian Judicial Council.
Canadian Judicial Council: Expected conduct of judges
Cartier v. Nairn