XY v. Ontario (Government and Consumer Services), 2009 HRTO 367

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

XY

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Government and Consumer Services and its Office of the Registrar General

Respondent

INTERIM DECISION

Adjudicator: Michael Gottheil

Date: March 30, 2009

Citation: 2009 HRTO 367

Indexed as: XY v. Ontario (Government and Consumer Services)

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the “Code”) alleging discrimination in the provision of goods and services on the grounds of disability, sexual orientation and gender. The applicant has also requested orders to anonymize and to ensure confidentiality of personal information.

2In the cover letter to the Application, counsel for the applicant highlights the particular privacy interests associated with the Application. The applicant is a male to female transgendered individual and the Application seeks both personal and broad public interest remedies. Counsel argues there is a need for immediate steps to protect the applicant’s privacy, even before the Application is served on the respondent. In this regard, counsel makes two alternative requests: that the Tribunal permit the applicant to bring a motion “ex parte” to address the privacy issues, or the Tribunal ascertain counsel who will be retained by the respondent, and serve the Application, the cover letter only on counsel.

3The Tribunal’s Rules do not specifically provide for a request without notice to other parties. Rule 19 provides that any party may make a request for an order during a proceeding, but the request must be delivered to the other parties before or at the same time as filing it with the Tribunal. Rule 3.11 permits the Tribunal to make an order protecting the confidentiality of personal information where it considers it appropriate. Requests pursuant to Rule 3.11 are typically brought under Rule 19 with notice to all parties.

4Rule 5.2 permits the Tribunal to vary or waive the application of any Rule where it considers it appropriate to ensure a fair just and expeditious resolution of an application. In my view it would be an extraordinary and rare case in which the Tribunal would decide a request for order without notice to other parties or affected persons.

5I need not decide whether the Tribunal would exercise its discretion under Rule 5.2 to determine a request to anonymize or other orders under Rule 3.11 without notice to the other parties. In these circumstances, a more limited approach will preserve the applicant’s interests pending determination of the request.

6I am satisfied, given the nature of the Application, that absent an order, there is a risk the privacy interests of the applicant may be harmed. If the applicant’s name were to be widely disclosed, a request for Rule 3.11 orders would become moot. The Tribunal has the power to control its proceedings, and may make orders on its own initiative. In these circumstances, it is appropriate to take special measures to protect the applicant’s confidentiality pending the determination of the request for order.

ORDER

7The Tribunal makes the following orders:

a. This Interim Decision shall identify the applicant by the initials XY;

b. The Tribunal shall serve the Application and a copy of this Interim Decision on counsel for the respondent;

c. Within 10 days of the date of this Interim Decision the applicant will deliver a Request for Order (Form 10) to respondent’s counsel setting out the remedy or remedies sought pursuant to Rule 3.11 and file it with a Statement of Delivery with the Tribunal;

d. The respondent will deliver its Response to the Request (Form 11) and file it with the Tribunal in accordance with the Rules. Respondent’s counsel will ensure the applicant’s name is kept strictly confidential until the Request for a Rule 3.11 order is heard and decided;

e. Anyone who becomes aware of the applicant’s identity shall not disclose that information until the Tribunal has decided the Request.