HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Michael McKinnon
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
Her Majesty the Queen in Right of Ontario as represented by the Ministry of Correctional Services, Frank Geswaldo, George Simpson, Phil James and James Hume
Respondents
-and-
Ontario Public Service Employees Union
Intervenor
INTERIM DECISION
Adjudicator: H. Albert Hubbard
Indexed as: McKinnon v. Ontario (Correctional Services)
APPEARANCES
Ontario Human Rights Commission ) Anthony Griffin, Counsel
Michael McKinnon, Complainant ) Kate Hughes, Counsel
Ministry of Correctional Services, ) Leslie McIntosh and Frank Geswaldo, George Simpson, ) Judie Im, Counsel Phil James and James Hume, Respondents )
Ontario Public Service Employees ) Joshua Phillips, Counsel Union, Intervenor )
Paul Medeiros, Intervenor ) Selwyn Pieters, Counsel
Introduction
1I am called upon to deal with two requests in this Interim Decision. The first is one made by the Ministry of Correctional Services (the “Ministry”). It is for an order banning the publication of portions of Exhibit 79 as well as the minutes of two settlement agreements, one involving Rose Buhagiar and the other concerning Paul Medeiros, the production of which was ordered by the tribunal.
2The Ministry’s request with respect to the minutes of settlement is to ban the publication of the “actual contents” of those documents, but not the names of the persons involved or the general import of those agreements. Although of the view that their details should remain confidential in accordance with the intentions of their signatories, the Ministry would not find it objectionable if in due course the tribunal (if so persuaded) drew inferences from those documents and expressed them in non-specific terms. However, according to Ms. McIntosh, if it were “necessary to refer to the contents of the minutes at all” in the course of a decision, that reference “would have to be oblique”; the tribunal would have to say, for instance, that “the discipline was reduced” or “the financial reward was rich”.
3The second request is for non-party intervenor status, and it was made by Mr. Selwyn Pieters on behalf of Paul Medeiros, concerning his client’s right to privacy regarding his settlement agreement and various performance records pertaining to him contained in the Complainant’s “Book of Documents 2” (Exhibit 324).
4After hearing from the parties, Mr. Medeiros was granted third-party intervenor status for the sole purpose of speaking to those particular matters regarding which he requested a publication ban.
Grounds for the Requests
5In McKinnon v. Ontario (Correctional Services), 2010 HRTO 1235, the Tribunal rejected the submission that these confidential settlements were privileged and that therefore their production could not be compelled. The Ministry’s application for a judicial review of that decision was dismissed (Ministry of Correctional Services v. McKinnon, 2010 ONSC 3896). The concern as to the integrity of such agreements raised by the Ministry in resisting the production of these documents was advanced as a ground for its request for a publication ban on their contents. A second ground for the request was that the parties have a legitimate expectation of privacy regarding the financial and personal information set out in those documents. The gist of the Ministry’s position regarding the agreements was stated as follows:
... there is financial information in both minutes of settlement, and there is personal information about the individuals. In the case of Fic and Rusaw [the Buhagiar agreement], attendance and even the Exemplary Service Award. Although it's hard to see how that would prejudice anyone, it still constitutes personal information, and I think the chief thing I would point out here -- and this was fully argued on the question of their discloseability, and I don't want to repeat it, but the chief thing here is the whole integrity of minutes of settlement.
6The parts of Exhibit 79 for which a publication ban is sought are Tabs 4 and 5, consisting of notes of statements taken from individuals in the course of an investigation of the Ministry’s Organizational Effectiveness Division (the “OED”). The Ministry’s position regarding those notes is that the identities of the persons interviewed must be kept confidential to protect their interests and to ensure the integrity of a useful process. The interviewees met with the investigation team on the promise of strict confidentiality, and the notes made of their statements reflect on others with whom they continue to work. Moreover, to breach that confidentiality would be to place similar future investigations in jeopardy.
7Although numbers are used in Tab 4 in place of names, in the Ministry’s view the alleged mischief cannot be avoided by the use of anonyms because some interviewees might be identified by co-workers from the substance of the comments ascribed to them (such as references to maternity leaves). According to the Ministry, these tabs contain “sensitive information that co-workers are sharing about others that has the potential to cause disruption in OED if made public”, and for that reason it is requested that the publication ban extend to the contents of those tabs, unless some other effective means might be found to prevent that mischief.
Application of the Law
8The request for a “publication ban” is a matter to be decided in accordance with section 9(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”), which is 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 nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests if any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public.
9Counsel for the Ministry suggested that guidance may be found as well in the tribunal’s new rules, Rule 3.11 of which 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.” However, this proceeding falls under the “Rules of Practice Governing Commission Referred Complaints, January 31, 2008.” Since there is no like provision in those Rules, I am governed solely by s.9(1) of the SPPA in dealing with requests for a publication ban.
10As it is clear that the documents in respect of which the ban is sought contain information involving “financial matters, personal matters, and other matters” (of an allegedly sensitive nature), I am called upon to form an opinion as to whether such matters are of a sufficiently “intimate” and/or “sensitive” nature that an exception should be made to the requirement that the hearing be open to the public in respect of them. In forming that opinion, I must weigh or balance the interests of the persons affected and the public interest.
11There is considerable jurisprudence regarding the making of publication ban orders, and the cases to which I was referred stress the overriding importance of open hearings and indicate that compelling circumstances are required to warrant a ban of any kind on the publication of evidence. For instance, in Marakkaparambil v. Ontario (Health and Long-Term Care), 2007 HRTO 24, the tribunal stated (in paragraph 48) that: “Open hearings are also a matter of freedom of expression and freedom of the press, protected by s. 2(b) of the Charter, and strong reasons must exist to justify infringing these rights”. Among the cases cited in support of that observation to which reference was made before me are: Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835; August v. Hetherington, 2003 HRTO 25; Spears v. Durham Regional Police Services, 2009 HRTO 2215. Indeed, as the Respondent in Steele v. Ontario Ministry of Community Safety and Correctional Services, 2010 HRTO 1019, the Ministry opposed such an application “on the basis that a publication ban is a highly unusual measure in proceedings that are meant to be open to the public”.
12Counsel for the Ministry referred at length to the decision in Steele. In that case, the complainant, an inmate in an Ontario prison, was unsuccessful in his bid to secure a publication ban to conceal his name, his mother's name and those of any of the inmate witnesses. He wanted initials to be used in place of their names, and he asked that no identifying information about them be provided to anyone other than the parties and their counsel. The grounds advanced for that request, and for the respondent’s opposition, to it are set out in paragraphs 6 and 7 of that decision:
In support of this Request, the applicant relies on both privacy considerations and concerns about personal safety and reprisal. Counsel cited findings of this Tribunal and of other agencies and courts to argue that there is an institutional culture in the province’s correctional facilities that is intolerant of Black inmates and employees, especially those who complain of racism. He pointed me to this Tribunal’s findings in McKinnon v. Ontario (Ministry of Correctional Services), 2007 HRTO 4, where the respondent—the same one as in this case—was found to have failed to implement Tribunal orders in good faith, leaving the applicant—an Aboriginal jail guard who successfully complained about institutional racism—to be further victimized by racism and reprisals for having complained in the first place. Counsel urges me to help avoid putting his client in the same position as Mr. McKinnon.
The respondent opposes the Request on the basis that a publication ban is a highly unusual measure in proceedings that are meant to be open and public. Counsel further argued that there is no evidence of the kind of institutional culture the applicant describes, and further that there is little reason to expect that a publication ban will necessarily protect the applicant and his witnesses from the kind of consequences he fears. In the absence of evidence establishing the existence of an institutional culture described by the applicant, and of evidence establishing a causal connection between such culture and the likelihood of adverse consequences affecting the applicant’s privacy and safety, the respondent argues that the norm of identity disclosure should be maintained.
13It seems well-established that a request for a publication ban must be supported by evidence, and counsel for the Ministry referred to the Steele case as authority for the proposition that there is considerable flexibility as to what may constitute such evidence. It was stated in that case (in paragraph 9) that:
The Tribunal has, in other circumstances, required evidence, either oral or in affidavit form, to support a request for a publication ban. See Marakkaparambil [supra]. The Tribunal has been flexible in what it considers “evidence” on preliminary motions. The applicant in this case introduced social science data, newspaper articles and unsworn statements in support of his request. While these documents are not “evidence” in a technical sense, they do provide helpful contextual information.
14I find the decision in Marakkaparambil, supra, apt in the circumstances before me. The complainant in that case requested that her name, place of residence, place of work, and any other identifying information be concealed from everyone but the parties and Tribunal staff. The reasons given for that request were the possibility of media involvement and the attendant risk that her private, financial and personal information would become public, and that this would adversely affect her dignity, privacy, personal interests and “therapeutic or trust-like” relationships with her patients and colleagues. It was said in the complainant’s notice of motion that she:
... believes that if the partial publication ban is not granted, there is real and substantial risk to her dignity and privacy rights. A full hearing on this complaint will bring a substantial amount of the complainant’s educational, family, social, financial and economical conditions, which constitute privacy and personal information of the complainant.
15It was found in Marakkaparambil that there was no justification for a publication ban because there was no supporting evidence offered and, in any case, the interests asserted were not of a kind that would prevail over the public interest in an open hearing. As to the first reason, the tribunal noted that the complainant had neither testified nor filed an affidavit. It was concluded that: “With no evidentiary basis of any kind, it would be inappropriate for the Tribunal to order a publication ban.”
16Although in the case before me the Ministry did not call oral evidence in support of its request, Ms. McIntosh pointed out that “there is evidence in the form of the documents in Exhibit 79 and in the minutes of settlement, themselves, that they are confidential and what the concerns are”. In her submission, it was unnecessary to call witnesses to say what the effect on their privacy would be in the absence of such a ban because it is self-evident from the documents themselves.
17Tab 4 of Exhibit 79 is documentary evidence, and that document makes it clear that the interviewees would not have come forward but for the promise that their identities would remain confidential. An inference can be drawn from that document that relations between some co-workers in the OED might become awkward if it were made available to them. However, there is no evidence as to the seriousness of the effect that this might have either on their personal lives or on a workplace already found by the Ministry’s investigators to have become dysfunctional. In my view, the documentary evidence before me is insufficient to make a compelling case to override the public interest in an open hearing.
18As to the settlement agreements, although it is clear that they were intended to be confidential, they have been produced in accordance with the Tribunal’s order for a purpose that is inconsistent with a publication ban on their contents and, in my opinion, that order would fail of its purpose if I were to commit myself at this stage of the process to the making of oblique references to such potentially important documents. In confirming the Tribunal’s decision as to the importance of such evidence in dealing with end-of-hearing submissions, the Divisional Court had the following to say (Ministry of Correctional Services v. McKinnon, supra, at paragraph 6):
There is a compelling interest in having the documentation produced given the nature of the allegations made against the Ministry. Central to the issues currently before the adjudicator is whether the Ministry has failed to abide by earlier orders directed at remedying a serious case of discrimination. Indeed the adjudicator refers to the material as touching upon “matters that lie at the heart of the litigation” and “crucial to a proper resolution of the matters before the Tribunal”. The adjudicator provided cogent reasons why they were necessary to the task before him including that the settlement documentation may provide important evidence suggesting that the Ministry has not been acting in good faith in terms of its implementation of the remedies earlier ordered. These include that the settlements arose out of the same workplace of Mr. McKinnon, that two of them involve a high ranking person within the workplace who has figured as an antagonist to Mr. McKinnon throughout the long saga of his complaint, and that the Ministry might be engaged in a systematic process of trying to protect this person from adverse findings that would figure prominently in the issues that the adjudicator was tasked with determining.
19The second reason given in Marakkaparambil for refusing to make the order is equally relevant to the requests before me. It was said in paragraph 50 of that case that:
... the interests asserted by the Complainant are not of such a nature as to justify overriding the strong public interest in free expression and open Tribunal proceedings. Anyone who brings a claim and, indeed, any witness who testifies in a tribunal or court proceeding may be called upon to give evidence relevant to the issues in dispute that would in some other circumstances be considered personal. This includes matters such as income, family circumstances, and educational background. The desire to avoid publicity about the fact of having brought a complaint or the disclosure of this information to the public, media, colleagues or patients is not, in this case, of a compelling nature capable of overriding the public interest in open justice. ...
20Throughout the long history of this case, evidence (often crucial) of a financial and personal character has been adduced regarding persons who were neither parties nor witnesses, and there is nothing especially “intimate” or “sensitive” regarding their financial and personal interests that would be revealed by these particular settlements that warrants treating the parties to them differently.
21As to Tabs 4 and 5 of exhibit 79, given the numerical anonyms already in place, the only persons in a position to uncover the identities of some of the interviewees by reason of references to peculiar circumstances such as maternity leaves are their co-workers. Not only is it highly unlikely that any of them would apply to the Tribunal to see that exhibit (or any other), but their doing so would not “cause disruption in OED”. It would simply confirm an existing problem. Nor do I think the effective conduct of future investigations requires acceding to the Ministry’s request.
22The records pertaining to Mr. Medeiros found in Exhibit 324 are no different than those of other Ministry personnel dealt with in past decisions, and they are required for the same purpose. In past decisions, a serious discrepancy was found between the actual conduct of some Ministry personnel and the evaluation of their performance, and if there is evidence that this problem persists it cannot be suppressed simply because it is embarrassing.
23Finally, as the complainant pointed out, the circumstances relied upon in support of the requests before me are not akin to those involved in the very few cases in which a request for a publication ban was even partially granted, such as the need to protect a sexual harassment victim’s privacy in the unusual situation found in August, supra, or the statutory requirement to protect certain school records of minors, as in Persaud v. Toronto District School Board, 2008 HRTO 92.
24On the other side of the balance there rests the interests of the complainant and of the public (as represented by the Ontario Human Rights Commission) that the remedies and systemic orders of this tribunal be fully implemented with a view to ending racism in the Ministry. It is in the public’s interest as well that, if fresh orders prove necessary to achieve that purpose, they should be crafted and justified in light of the submissions of the parties and the evidence in its entirety. Not only does the public have a right that the hearing be open, but it has a right to full, fair and convincing reasons for the tribunal’s decisions and orders, the scope of which cannot be determined before the case is ended. In his submissions on behalf of OPSEU, Mr. Phillips made that point succinctly as follows:
How can we tell you now what evidence to cite or not cite when you haven't heard all of the evidence and you haven't heard all the arguments? How do we know right now what you will need to refer to and what you will not need to refer to in order to justify your findings at the end of the day? It is frankly unfair to ask you to bind yourself at this particular juncture, and as Ms. Hughes points out, you know, this Tribunal and yourself, sir, as chair have demonstrated an ability to appropriately deal with private information and balance the disclosure of that information versus its relevancy and cogency to the decision you're making. That is a decision which should be left to the end of the day when you in particular, but all of us, are in a better position to judge the importance of that information and how it may figure into a final decision. It is simply not the time to deal with it.
25After Mr. Pieters expressed concern over the fact that the home address of his client is found in the documents in question, it was pointed out that it is also found in other exhibits, as are the addresses of other Ministry employees. Given the nature of the work of corrections officers and managers and various threats that have been made against some of them there is a clear need to preclude access to such home addresses, and the parties agreed that they should be redacted. In her September 20, 2010 e-mail to the Human Rights Tribunal Registrar-Transition in that regard, Ms. McIntosh said that “the Ministry would undertake the task of providing redacted copies to replace those in the Tribunal’s files.”
Orders
26The request that the addresses of Ministry personnel be redacted is granted, that exercise to be carried out in accordance with the Ministry’s undertaking to provide the Tribunal with redacted copies of exhibits containing such addresses.
27The requests for a publication ban on the contents of Tabs 4 and 5 of Exhibit 79 and on the contents of the settlement agreements concerning Ms. Buhagiar and Mr. Medeiros are denied.
Dated at Toronto this 30^th^ day of September, 2010.
“Signed by”
H. Albert Hubbard
Adjudicator