Human Rights Tribunal of Ontario
B E T W E E N:
T. S. by his next friend P.S. Applicant
-and-
Toronto District School Board Respondent
INTERIM DECISION
Adjudicator: Michelle Flaherty Date: January 27, 2010 Citation: 2010 HRTO 176 Indexed as: T.S. v. Toronto District School Board
1The applicant filed an Application with the Tribunal alleging discrimination on the basis of disability in the provision of goods, services or facilities contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended, (the “Code”).
2On November 30, 2009, the respondent filed a Request for an Order During Proceedings (“Respondent’s RFOP”) asking that the applicant’s next friend be directed to permit the respondent to use, disclose, and submit as evidence to the Tribunal information and documents from the applicant’s Ontario Student Record.
3The applicant responded to the RFOP indicating that he would consent to the respondent viewing the applicant’s Ontario Student Record after the conclusion of the mediation. It is unclear whether the applicant would object to the use or disclosure of such documents in the course of the proceeding before the Tribunal.
4On December 11, 2009, the applicant filed a Request for an Order DuringProceedings (“RFOP”) seeking:
a. a publication ban restricting the use of the applicant’s name and the full names of his immediate family members by any third party or media that may attend the hearing of this matter; and
b. that the name of the applicant, his immediate family members and next friend by anonymized by the Tribunal.
5The respondent has not responded to the RFOP and the time for doing so has elapsed.
Analysis
Ontario Student Record
6I understand the applicant to have consented to at least part of the respondent’s RFOP. The respondent has not indicated that it wishes access to the Ontario Student Record in advance of the mediation and, in any event, the Tribunal’s Rules of Procedure (“Rules”) set out a timeframe for the exchange of arguably relevant documents. The timeframe is triggered by the issuance of a Confirmation of Hearing, which has yet to occur in this case.
7At this stage, it is not necessary for the Tribunal to determine whether documents from the applicant’s Ontario Student Record can be tendered as evidence at the hearing. This is without prejudice to the parties’ ability take steps to ensure disclosure of arguably relevant documents according to the Rules or to object to evidence at the hearing.
Publication Ban and Anonymization
8The applicant is seeking 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. In addition, the applicant asks the Tribunal to anonymize his name and that of his next friend and immediate family members in its decisions. On its own, this latter measure would not restrict what others can publish.
9The applicant is a child with a disability. He states (and I accept) that he is particularly vulnerable to stigma. The applicant also stresses the importance to him of keeping the details of his personal medical information private.
10Rule 3.11 of the Rules states that the Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.
11In my view, the circumstances of this case do justify the anonymization of the applicant, his next of friend and his immediately family members’ names in its decisions. The Tribunal shall use initials to identify these individuals and the style of cause is amended accordingly.
12The applicant argues that a publication ban is also appropriate and he seeks to distinguish his case from C.M. v. York Region District School Board, 2009 HRTO 735. He argues that the Tribunal should give particular consideration to ordering a publication ban where there is an established disability and where the proceeding will necessarily involve the disclosure of personal medical information.
13While I appreciate the applicant’s concerns about privacy and stigma, I recognize also the fundamental importance of an open and transparent Tribunal process: see C.M., supra.
14In my view, a publication ban (a restriction on what others may publish) is not justified.
15The applicant’s RFOP is granted in part. The Tribunal will anonymize the names of the applicant, his next friend and his immediate family members.
16I am not seized of this matter.
Dated at Toronto, this 27th day of January, 2010.
“Signed By”
__________________________________
Michelle Flaherty
Vice-chair