HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Matthew Rocca by his litigation guardian, Nick Rocca
Applicant
-and-
Peel District School Board,
John Stegeman, Tony Pontes and Shirley-Ann Teal
Respondents
INTERIM DECISION
Adjudicator: Lorne Slotnick
Indexed as: Rocca v. Peel District School Board
1This is an Application filed under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). This Interim Decision deals with a request by the applicant for confidentiality. The case is scheduled to be heard on April 27 and 28, 2009.
2The applicant was 7 years old when the complaint that underlies the present Application was filed with the Ontario Human Rights Commission in June, 2007. His litigation guardian, Nick Rocca, is his father. The complaint alleges discriminatory treatment of the applicant by the respondent school board and its staff on the grounds of disability. The complaint states that the applicant is a child with PDD/Aspergers. The acronym PDD refers to pervasive developmental disorder.
3The complaint cites a number of incidents at school and says the respondent school board has failed to accommodate the applicant's disability and provide him with the necessary tools to function in the school environment.
4In several requests from his parents starting on January 26, 2009, the applicant has asked the Tribunal for the following orders with respect to confidentiality:
That the Tribunal close all or part of the hearing to the public.
That the Tribunal keep confidential some material that is likely to be entered in evidence at the hearing, specifically any records, documents, reports or statements from doctors, occupational therapists and audiologists, and also assessment documents completed by staff of the respondent school board.
That the Tribunal keep confidential any material produced by the respondents "containing negative, inflammatory, slanderous, demeaning and unprofessional comments" regarding the applicant and his parents, and also any material that the applicant's parents "deem privileged and confidential."
That the Tribunal keep the identity of the applicant and his parents confidential.
5In support of these requests, the applicant's parents argue that the documents and testimony they seek to keep confidential are private and sensitive in nature. They ask the Tribunal to consider that the applicant is a young child. They say the allegedly negative and inflammatory comments made "are not in response to the application filed, therefore they serve to further damage Matthew's reputation." And they state that they and the applicant have suffered reprisals for filing the complaint, making it necessary to keep their identities confidential.
6The respondents have not made any submissions on the issue of confidentiality.
7Pursuant to section 42 of the Code, the provisions of the Statutory Powers Procedure Act apply to proceedings before the Tribunal, unless those provisions conflict with the Code itself, the Code's regulations, or the Tribunal's rules. Section 9 of the Statutory Powers Procedure Act calls for public hearings, as follows:
9.(1) An oral hearing shall be open to the public except where the tribunal is of the opinion that,
(a) matters involving public security may be disclosed; or
(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public,in which case the tribunal may hold the hearing in the absence of the public.
8In addition, the Tribunal's Rules applicable to this proceeding provide as follows:
5.10 The Tribunal's proceedings, other than mediation, are open to the public, except when the Tribunal determines otherwise.
5.11 The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.
9In the normal course, then, a hearing before this Tribunal is open to the public. Part of the principle of openness is that the parties to the proceeding are identified. Documents that are made exhibits are accessible to members of the public and become part of the hearing record. The Tribunal's Decision, naming the parties and referring to the exhibits as necessary, is public. The Tribunal provides its decisions to two legal reporter services: the Canadian Legal Information Institute and Canadian Human Rights Reporter (CHRR).
10Any order of confidentiality, whether to close the hearing, to keep the name of any party undisclosed, or to keep any exhibit confidential, must be restricted, in my view, to circumstances that are for some reason exceptional. That is the assumption behind the section of the Statutory Powers Procedure Act section noted above, and it must be the basis of interpreting Rule 5.11. Otherwise the principles of openness and transparency, fundamental to this province's legal system, would be seriously undermined.
11This Tribunal commonly hears cases in which sensitive and otherwise private medical information is received through oral testimony and documents such as reports from health professionals. That is in the nature of applications under the Code, a large proportion of which involve individuals who are alleging discrimination on the ground of disability. Some of these cases involve applicants who are minors. The Tribunal has not applied any blanket rule ordering any type of confidentiality for applicants with disabilities or for applicants who are minors.
12It is understandable in this case, given the nature of the complaint, that the applicant's parents would prefer some measure of privacy for their son and themselves. However, in my view, there is nothing about this applicant, or about the facts as alleged in the complaint, or about the nature of the likely testimony or documentary evidence, that would compel the Tribunal to conclude that the normal standards of a public hearing should not apply. Granting the parents' requests would enable them to keep their identities private while they pursue in a public forum allegations of discrimination against named individuals and a publicly funded school board. It would bar any member of the public from attending what would normally be an open hearing, if indeed any member of the public is interested. And it would cast a shroud of secrecy over exhibits in a public hearing. These should be considered extraordinary steps that should not be taken simply because some of the evidence will consist of reports by health professionals and other testimony may recount incidents of conflict between the applicant or his parents and the respondents.
13While the material from health professionals that is likely to be put in evidence in this case may be of a sensitive nature from the point of view of the applicant's parents, there is no indication that it is any more sensitive or embarrassing than the evidence in many other cases, including those involving minors. With respect to allegedly negative statements about the applicant or his parents, those will be admitted in evidence based on their relevance to the issues and may be referred to in the decision as necessary. An applicant cannot expect to request the Tribunal to make a finding that the Code has been violated based on statements by the respondents and at the same time have the Tribunal keep those statements confidential.
14However, as always, the adjudicator conducting the hearing retains the discretion to raise an issue of confidentiality in relation to any document or any other piece of evidence, and to write his or her decision keeping in mind the sensitivity of the information. In addition, it may be that some documents may be inadmissible in any event because of statutory provisions such as Section 266 of the Education Act, which makes pupil records privileged and inadmissible.
15I am confident most if not all of the concerns expressed by the applicant's parents would be addressed if the Tribunal simply kept their names and the applicant's name confidential in its decisions. Again, in my view, the nature of this case does not justify that level of departure from the fundamental principles of an open and transparent legal system. The fact that the applicant is a young child is not in itself sufficient justification to not disclose his identity, unlike situations where, for example, a minor is facing criminal charges. The applicant has raised the issue of reprisals, but if there have been or will be reprisals from the respondents (a violation of the Code), anyone motivated to act in this way already knows the identity of the applicant, and I cannot see how confidentiality can be of any assistance in that regard.
16Further, a review of the file indicates that a substantial amount of evidence at the hearing may relate to the interaction between this applicant's parents and the respondent parties. An order keeping the name of the applicant confidential would necessarily include keeping his parents' name confidential, which in my view is not justified in the circumstances of this case, where the statements and actions of the applicant's parents may be an issue. For example, the respondents assert in the material filed that their efforts to accommodate the applicant were repeatedly thwarted by the conduct of the parents, including the parents' alleged refusal to disclose a psychological assessment of the applicant that had been performed by an outside agency. On balance, in my view, the desire for privacy by the applicant and his parents, including the concern about sensitive information, is outweighed in these circumstances by the principle of openness.
17In summary then, the applicant's parents have not provided sufficient reason to justify their confidentiality requests. The Requests are therefore denied.
Dated at Toronto, this 15^th^ day of April, 2009.
"Signed by"
Lorne Slotnick
Member```