A.S. and E.C. v. Toronto Police Services Board, 2008 HRTO 437

Human Rights Tribunal of Ontario

B E T W E E N:

A.S. and E.C. Complainants

-and-

Ontario Human Rights Commission Commission

-and-

Toronto Police Services Board Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: December 30, 2008 Citation: 2008 HRTO 437 Indexed as: S. and C. v. Toronto Police Services Board

ORAL SUBMISSIONS

A.S. and E.C., Complainants: Jane Letton, Student-at-Law Toronto Police Services Board, Respondent: Michelle Wright, Counsel Ontario Human Rights Commission: Isfahan Merali, Counsel Attorney General of Ontario, Proposed Intervenor: Michael Doi, Counsel

1These complaints challenge the Toronto Police Services Board’s policy and program with respect to executing “police reference checks” in circumstances where the police record discloses apprehensions under the Mental Health Act, R.S.O. 1990, c. M-7, as amended (the “Mental Health Act”). This Interim Decision deals with two preliminary requests.

2First, the complainants request, with the consent of the other parties, that the Tribunal anonymize their identities and restrict the publication of their names in order to protect their privacy. It is a well-established principle that a publication ban will not simply be issued on consent because of considerations regarding the transparency of legal proceedings and the constitutional rights to freedom of expression and freedom of the press, see K.F. v. Dufferin-Peel Catholic District School Board 2008 HRTO 6 and Hogan v. Ministry of Health & Long-Term Care 2003 HRTO 6. However, in light of the fact that the very issues underlying these complaints relate to the alleged discriminatory disclosure of highly personal information, this is one of those exceptional situations where it appropriate to grant the complainants’ request for anonymity. The Tribunal is mindful of the fact that a previous decision has included some identifying information of the complainants. However, this concern was not raised by the complainants or addressed in submissions. As such, the Tribunal orders:

1A publication ban with respect to the names of the complainants;

2The complainants shall be referred to by their initials in any communication by or with the Tribunal about this case;

3In responding to inquiries about these complaints the Tribunal shall advise that the complainants’ names are subject to publication ban; and

4The style of cause is amended accordingly.

3Second, the Attorney General of Ontario seeks an order for intervenor status. The Attorney General of Ontario proposes to adduce expert evidence with respect to the relevancy of apprehensions under the Mental Health Act to vulnerable service sector reference checks and the appropriateness of this information as a risk assessment tool. The respondents consent to the intervention. While the Commission and the complainants do not object to the intervention, they indicate that they do not endorse the substantive position of the proposed intervenor. Given that all parties agree that the Attorney General of Ontario has significant interest in the issues, the request for intervenor status is granted on the following conditions:

1The Intervenor may call a witness to be qualified as an expert. The expert witness may testify with respect to the relevancy of apprehensions under the Mental Health Act to vulnerable service sector reference checks and the appropriateness of this information as a risk assessment tool;

2After the respondent has completed its cross examinations, the Intervenor may be permitted to cross examine witnesses provided that the cross examination is not repetitive, relates only to the issues upon which the Intervenor was granted status and is helpful to the resolution of the issues before the Tribunal; and

3The Intervenor is required to serve and file their Expert Materials and Documentary Brief/Witness Statements in accordance with the timelines set by the Tribunal in correspondence from the Registrar-Transition.