Human Rights Tribunal of Ontario
B E T W E E N:
Zeljko Lazarevic
Applicant
-and-
York University
Respondent
INTERIM DECISION
Adjudicator: David A. Wright
Date: July 26, 2010
Citation: 2010 HRTO 1601
Indexed as: Lazarevic v. York University
[1] On July 23, 2010, the applicant filed a Request for Order During Proceedings asking that his name be anonymized in any Tribunal decisions, that the respondents be ordered not to disclose his name, and that the hearing be closed.
[2] The Application alleges that the student Code of Conduct discriminates on the basis of age because it does not apply to professors. By Case Assessment Direction dated July 23, 2010, this Application was set down for a summary hearing by teleconference on this issue of whether it has a reasonable prospect of success.
[3] Having considered the applicant’s Request, I have determined that the respondent need not respond to it, and it is dismissed.
[4] In support of his Request, the applicant cites the following:
In the Serbo-Croatian (Eastern European) community of which I am a part, it is not held socially acceptable to directly challenge authority by way of legal proceedings in the manner that I have done so in my Human Rights complaint. Should my full name be published, it will reek havoc by way of diminishing my family name and family reputation. My family and I would become outcasts in our own community and be condemned for "creating trouble" for a publicly funded and government-supported post secondary institution. As the vast majority of our family friends are from small, rural Eastern European communities, they hold government and authority in very high respect, even if the authority/government is incorrect, because they believe in unquestionable legitimacy of authority. I am requesting that the Tribunal respects these cultural differences and be culturally sensitive to the Impact that the publishing of my name may have.
I have partially explained the details of some of the events that have taken place to my parents and expressed my desire to possibly take my complaint further. My parents have informed me not to proceed under any cIrcumstances (due to the cultural differences I previously described) and that if I did, they would permanently cut all ties with me and disown me in order to protect the family name and reputation. Should my name be published, my relationship with my family/parents would be permanently terminated
My complaint alleges damages that the University has caused me that deal with my private health information and in detail, talks about my specific condition, symptoms and that I have acquired a permanent disability as a result of the University's policies. As my disability is invisible, anyone reading this case with my name published would acquire knowledge of my disability, placing me at further risk for discrimination in school and/or employment. I would like my health information to remain private and confidential and thus my name removed.
Given the nature of my complaint (I.e. it attacks a major policy), if successful, it would call for large-scale policy changes around the country for all the post-secondary institutions. I do not wish to be personally known for causing these changes for privacy reasons as it may result in harassment and hatred by groups of individuals, such as faculty/staff members, the media and so forth. Even if my case is unsuccessful, I may be targeted because I attempted to cause a change in policies and complain to the Tribunal. My case may draw particular interest given that it is the first of its kind in Canada, and secondly due to the large financial compensation sought.
[5] The relevant principles were set out in C.M. v. York Region District School Board, [2009 HRTO 735](https://www.minicounsel.ca/hrto/2009/735) at paras. [19-22](https://www.minicounsel.ca/hrto/2009/735) as follows:
Publication Bans and Anonymization
The applicant’s Request is for a publication ban, which would restrict the publication of the applicant’s name by anyone in attendance at a hearing or with knowledge of the matter. Another possible response to the concerns raised by the applicant is a decision by the Tribunal to anonymize the applicant in its decisions, without restricting what others can publish. Rule 3.11 of the Rules of Procedure permits the Tribunal, where it considers it appropriate to do so, to make an order to protect the confidentiality of personal or sensitive information.
Open Justice
I agree with the respondents that this Request raises important issues about the openness of the Tribunal process. An open justice system is a fundamental principle of a free and democratic society, so that the actions of those responsible for interpreting and enforcing the law may be subject to public scrutiny. Moreover, the principles enshrined in the Code are quasi-constitutional rights which are recognized as particularly significant in Canadian society. It is important for there to be public scrutiny when respondents found to have violated these rights and also when accusations of discrimination are made by applicants but not upheld. I agree with the respondents that it is a serious matter to be accused of breaching the Code, which may also cause stress and stigma. Without good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity, assured that they will not be identified if they are found not credible, their allegations are rejected or they are held to have violated the Code. Effective public scrutiny of this human rights system depends, in part, upon knowing how the Tribunal addresses the particularly [sic] parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems.
Publication Ban
In Marakkaparambil v. Ontario (Health and Long-Term Care), 2007 HRTO 24, the Tribunal addressed a request for a publication ban, and noted the need for evidence before such an order will be granted: para. 49. It also noted the exceptional circumstances necessary for such an order as follows, at paras. 48 and 50, referring to s. 9(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”):
[…] The SPPA allows limitations on open hearings only where “…intimate financial or personal matters or other matters may