HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ontario Human Rights Commission
Commission
-and-
August
Complainant
-and-
Richard Hetherington and Richland Marketing Inc. o/a
Richland Technical Services
Respondents
INTERIM DECISION
Adjudicator: Patricia E. DeGuire
Human Rights Tribunal of Ontario
400 University Avenue, 7th Floor
Toronto ON M7A 1T7
Phone (416) 314-0004 Fax (416) 314-8743 Toll free 1-800-668-3946
TTY (416) 314-2379 / 1-800-424-1168
INTRODUCTION
1By letter dated April 17, 2003, August (“Complainant”) asked the Tribunal not to publish her name or her same-sex partner’s name in this matter. A copy of the letter was sent to all the parties. The Tribunal considered the letter as a Notice of Motion seeking an order for a partial publication ban.
2The Tribunal informed all the parties that to assist it in taking a decision on the Complainant’s request, it required submissions from all the parties by May 1, 2003. By document dated April 30, 2003, the Complainant filed and served her submission to support the motion. Under date of May 1, 2003, the Ontario Human Rights Commission (“Commission”) filed and served its submissions. The Commission supported the Complainant motion.
3The Respondents did not file any submissions in response to this motion.
4On May 6, 2003, the Tribunal issued its written decision that the motion was granted. It directed that the name “August” be substituted for the Complainant’s name and that the name “May” be substituted for her partner’s name.
5These are the Tribunal’s Reasons and Order for its Interim Decision concerning disposition of the motion brought on April 17, 2003 by the Complainant.
ISSUES
6The Tribunal dealt with the following issue:
Is there some real and substantial risk to the dignity and privacy rights of this particular Complainant if her identity and that of her partner are disclosed?
Would disclosure of their identity impede the Complainant’s right to a fair hearing?
Would the remedy requested impede the Respondents’ right to make full answer and defence or to know what case they must meet, impede public interest to know about these matters or the need for the freedom of expression for a third party including the media?
Are there any reasonable alternate means that will protect the Complainant’s privacy rights and yet, limit the expression right of a third party or the media as little as possible?
DECISION
7The Motion is granted. A partial publication ban is imposed in this matter indefinitely. The proper perimeter of the partial publication ban is dealt with under the section captioned “Order”.
The Parties’ Positions
The Complainant’s Position
8The Complainant’s unsworn Affidavit was the only motion material she filed. It includes the following:
She filed the Complaint, with the support of her psychologist, because she wanted to do the right thing;
She did not realize that so much attention would be drawn to the process;
The publication of her name and her partner’s name would make her the object of scrutiny and judging;
Her family does not know she has a same-sex partner: she feels she has the right to the protection of privacy regarding that relationship;
She does not wish her family to learn of her relationship from a publication or from others;
She has frequent anxiety attacks and feels ashamed and embarrassed about facing people she knows in public if they knew she had been sexually harassed;
She is housebound because she is afraid people would know about her incident;
She has been diagnosed with “Social Phobia”; and
She has not worked since January 2002, she is not motivated to find a job – she fears going back to work and confronting co-workers.
The Commission’s Position
9The Commission adopts the Complainant’s submissions. In addition, it makes further submissions including the following:
The significance of the dignity and privacy interests at stake outweigh the negligible effect on the public interest or any prejudice to the Respondent;
The public interest to know about this case and the Tribunal’s decision would not be affected if the order is granted;
The Respondents are not prejudiced by the partial publication ban because they have full knowledge of the identity of the Complainant and her partner, have received disclosure and knows the case they must meet;
There is significant dignity and privacy interest at stake that would be protected by granting the partial publication ban;
The Code and the Tribunal’s decisions have recognised the prevalence of discriminatory attitudes toward same-sex relationships and the vulnerability of people who live in such relationships;
The Complainant has been humiliated and suffers anxiety because of the nature and scope of the alleged harassing conduct - the publication of her identity would compound her anxiety;
It is well documented that women feel embarrassment as a result of sexual harassment: (e.g., Constance Backhouse and Leah Cohen, The Secret Oppression: Sexual Harassment of Working Women (Toronto: Macmillan of Canada, 1978));
Clause 9(1)(b) of the Statutory Powers Procedure Act permits a Tribunal to exclude the public where intimate financial or personal information may be disclosed.
The Order being sought here is not as expansive, and does not prevent the public from attending the hearing or restricts the publication of the Tribunal’s decision; and
The Tribunal has jurisdiction to grant the remedy sought and has exercised its authority in the past to grant such a remedy.
Reasons for Decision
10Although the Complainant did not submit her evidence in the form of a sworn Affidavit, for the purpose of this motion, the Tribunal finds no reason to question the veracity of its contents. The Complainant merely seeks to protect her dignity and privacy rights by concealing her real identity and that of her partner. The Tribunal is satisfied that arguably, the Complainant verily believes that there is a real and substantial risk to her dignity and privacy rights if her real identity and that of her partner are disclosed.
11This Complaint is about sexual harassment. The allegations are markedly flagrant and explicit. The Tribunal is satisfied that nature of sexual harassment cases, which is compounded by the societal stigma attached to same-gender relationships arguably, put the Complainant’s dignity and privacy interests directly at stake if her identity and her partner’s identity are divulged.
12Privacy is fundamental to human relations. Dignity is fundamental to one’s personhood. In R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668 at p. 672, the court held that “[p]rivacy rights will be more directly at stake where a record concerns aspects of one’s individual identity...”
13The Tribunal is satisfied that those persons’ identities do not impede the Respondents from knowing the case they must meet or from making a full answer and defence in this matter. As the Commission aptly submits, this information is well known to the Respondents.
14Further, the Tribunal is satisfied that restricting the publication of those identities would interfere with a third party, including the media, need for freedom of expression or the public interest in knowing about this case as little as possible. Simply stated, the full content of the case would still be open to the public. Only the identities of the Complainant and her partner would be barred from publication.
15The fundamental principles of fairness recognises competing interests. The statutory power to preclude the public from hearings where intimate personal matters may be disclosed, by necessary implication, recognises the need to balance the interest of the Complainant and the public. Also, it recognises that dignity and privacy interests are significant and could outweigh the principles of holding open public hearings. (See Clause 9(1)(b) of the SPPA).
16It is reasonable to conclude that holding a public hearing where intimate personal matters may be disclosed, more likely than not, would impede a Complainant’s right to a fair hearing.
17The Tribunal recognises that a publication ban is an extraordinary remedy. It should be ordered only if it is necessary to prevent a real and substantial risk to the fairness of a trial. A decision-maker is under a duty to consider alternate measures that will achieve fairness of the hearing without imposing such a remedy. If the ban does not meet the strict standard, it ought not be granted. (See Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835).
18As noted above, in this case, the Complainant seeks a partial publication ban. The outer limits of the ban would prohibit the publication of any information that would lead directly or indirectly to the identity of the Complainant and her partner.
19The Tribunal has balanced the Complainant’s need to protect her dignity and privacy rights against the public right for the freedom of expression for a third party including the media. The Tribunal is satisfied that a specified partial publication ban, is the only reasonable alternate means that will protect the Complainant’s dignity and privacy rights and yet, limit the expression right of the Respondents, a third party or the media as little as possible.
ORDER
The Tribunal Orders as follows:
(1) That the Complainant’s correct name, address, date of birth and home telephone number, and any other personal information be deleted from all the records relating to this case, including the pleadings, disclosure and the Tribunal files and the name “August” be substituted.
(2) All information that leads directly or indirectly to the Complainant’s identity is prohibited from disclosure or publication.
(3) That the Complainant partner’s correct name, address, date of birth and home and work telephone numbers, the name of her employer, the address and any other personal information be deleted from all the records relating to this case, including the pleadings, disclosure and the Tribunal files and the name “May” be substituted.
(4) All information that leads directly or indirectly to the Complainant partner’s identity is prohibited from disclosure or publication.
(5) Anyone who makes any enquiry about this case shall be informed, if necessary, of the publication ban on the identities and personal information of the Complainant and her partner.
(6) The Tribunal, any party or their counsel shall not divulge any information orally or in writing to anyone, except among themselves, that will directly or indirectly identify the Complainant or her partner.
Dated at Toronto, this 21st day of October, 2003.
“Patricia E. DeGuire”
Patricia E. DeGuire
Vice-Chair