IN THE MATTER OF the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended;
AND IN THE MATTER OF the Complaint by Michelle E. Hogan dated June 27, 2000; Martine Stonehouse dated March 10, 2000; A.B. dated December 8, 2000; and Andy T. McDonald dated May 19, 2001.
B E T W E E N :
Ontario Human Rights Commission
Commission
- and –
Michelle Hogan, Martine Stonehouse, A.B. and Andy McDonald
Complainants
- and -
Her Majesty the Queen in Right of Ontario as represented by the
Ministry of Health and Long-Term Care
Respondent
interim DECISION
Panel: Patricia E. DeGuire, Mary Ross Hendriks and Ajit Jain
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
1These are the Tribunal’s Reasons and Order for its Interim Decision concerning the disposition of a motion brought on March 27, 2003, by A.B., a Complainant.
2The Ontario Human Rights Commission (“Commission”) referred the subject-matter of these combined Complaints (“case”) to the Tribunal for a hearing. The Tribunal received the case on December 16, 2002. All of the Complainants allege discrimination with respect to service because of their sex, and two allege discrimination on the basis of disability. In sum, they allege in their respective Complaints that while in the process of receiving medical treatment towards gender transformation, their Ontario Hospital Insurance Plan (“OHIP”) funded services for same were terminated.
BACKGROUND TO THIS MOTION
3The Complainant brought this motion urgently, without notice of motion, motion material, affidavits or book of authority. The Complainant’s counsel states that the reason for requesting the publication ban is that the Complainant is extremely concerned about the publication of the name because of the “highly personal medical and other information [and because of]…the nature of the information in [the] Complaint and in the disclosure documents…. [and] for personal safety, employment continuity and privacy”.
4Counsel submits that the urgency was precipitated by information she had received that “…the Tribunal has already been requested by members of the public and/or media for information about this case.”
THE MOTION
5The Complainant, A.B., seeks an Order from the Tribunal as follows:
a. that the real name of the said Complainant not be referred to, and the initials A.B. be used instead;
b. that “…all documentation and verbal communications by the Tribunal, and anyone communicating with the Tribunal about this case be cautioned that there is a publication ban on the Complainant’s name…”;
c. that “…no identifying information be provided by the Tribunal about [this particular Complainant] to anyone other than the party participants, their counsel or members of the Tribunal and its staff, such information only to be provided as needed.”
DECISION
6The motion is granted on an interim basis. The limitation of the partial interim publication ban is dealt with in the section captioned “Order”.
ANALYSIS
7It is settled law that a publication ban is an extraordinary remedy and, thus, should be ordered only if it is necessary to prevent a real and substantial risk to the fairness of a trial. The party seeking the ban bears the onus of proving that proposed ban is necessary. That is, it relates to an important objective that cannot be achieved by a reasonably available and effective alternative measure, that the proposed ban is as limited as possible, and there is a proportionality between the salutary and deleterious effects of the ban: (See Dagenais v. Canadian Broadcasting Corp. 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835). (Dagenais), at p. 926 para. 98).
8A decision-maker is under a duty to consider alternate measures that will achieve fairness of the trial without imposing such a remedy. If the ban does not meet the strict standard, it ought not be granted.
9In this case, the Applicant does not seek an outright ban. The request is for a partial ban: that specific information that could directly or indirectly lead to the identity of the Complainant be withheld or expunged from the records. Further, the Complainant asks that the initials “A.B.” be used in the place of the Complainant’s real name.
10In sum, the Complainant seeks to protect privacy rights by requesting a partial publication ban.
11Counsel for the Complainant submits that all the parties concur in the partial publication ban as requested by the Complainant. To the Tribunal’s knowledge, there is no opposition to this request.
12The panel notes that the Applicant has not provided the Tribunal with an affidavit attesting to the risks that would be faced if the ban were not imposed. Nor is there an affidavit attesting to the urgency of the matter. The reasons and urgency for the matter are submitted in writing by counsel for the Complainant, and are set out above.
13In considering the nature of this case, the Tribunal is content that likely, there might be some real and substantial risk to the privacy right of this particular Complainant that may impede the right to a fair hearing if a partial publication ban is not imposed. In R. v. Mills, [1993] 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 or where confidentiality is crucial to a