C.D. v. Wal-Mart Canada, 2010 HRTO 426

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.D.

Applicant

-and-

Wal-Mart Canada Corp.

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: February 25, 2010

Citation: 2010 HRTO 426

Indexed as: C.D. v. Wal-Mart Canada

1This Interim Decision addresses two issues: (i) the applicant’s request that initials be used for her and her grandchild in communications by or with the Tribunal about this case; and (ii) the adequacy of the witness statements provided by the parties pursuant to Rule 17.2.

2The applicant is an employee at Wal-Mart. She has custody of her grandchild, who has various disabilities and severe behavioural problems. She alleges that a schedule change at Wal-Mart, under which she would have to work nights and weekends, discriminates against her on the basis of family status contrary to s. 5 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended.

Request to Anonymize

3In support of her request regarding initials, the applicant notes that her grandchild is a minor and the evidence at the hearing will require the use of sensitive medical information. She notes that there is a stigma to the grandchild that could result from publicity about the fact that a legal proceeding has been commenced involving her grandchild’s disabilities. She argues that for the anonymization to be effective, the applicant’s name must also be anonymized as the two may be linked to each other. The respondent filed no submissions in response to the applicant’s request and it is therefore unopposed.

4In C.M. v. York Region District School Board, 2009 HRTO 735, at paras. 20-21, the Tribunal noted the discussed of open justice and the recognition of the best interests of children as follows:

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 parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems.

The Best Interests of Children

In this case, the applicant is a child. This is significant for two reasons. First, attention to children’s best interests and recognition of their vulnerability are, like openness, fundamental values in our legal system. As noted in Baker v. Canada (Minister Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at para. 67, “Children’s rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society”. As the Supreme Court stated in Baker at para. 71, numerous international instruments have “placed special importance on protections for children and childhood”. Second, unlike adult litigants, a child does not make decisions for herself or himself about the Application. The decisions to commence it, what evidence to call and arguments to make, and whether to settle, to name just a few, are usually made on his or her behalf by a parent or guardian.

5In C.M., the Tribunal found that the potential stigma to the applicant of the proceedings, in light of the fact that the applicant was a minor, justified the anonymization of her name in the Tribunal’s decisions. In my view, this is also true in the present case. The nature of the applicant’s grandchild’s disabilities and other personal information about the grandchild will be an important part of the issues in the proceeding. Identifying the applicant may well lead to identification of her grandchild. In my view, the protection of the child’s highly personal information and the potential stigma of disclosing it outweigh the important principle of open justice. Accordingly, the Tribunal grants the order requested by the applicant. I also note that the applicant and her grandchild were identified in a previous Interim Decision of the Tribunal. In view of this order, the Tribunal will contact the legal information services to which it distributes its decisions and request that the previous Interim Decision be amended.

Witness Statements

6Rules 17.1 and 17.2 read as follows:

17.1 Unless otherwise ordered by the Tribunal, not later than (forty-five) 45 days prior to the first scheduled day of hearing, each party must deliver a witness list to every other party and file it with the Tribunal, along with a Statement of Delivery. The witness list must include the name of every witness, including expert witnesses, the party intends to present to the Tribunal.

17.2 The witness list must include a brief statement summarizing each witness’ expected evidence.

7The exchange of documents (Rule 16) and witness statements (Rule 17) 45 days prior to the hearing is a critical part of the Tribunal’s process. It ensures that each party fully understands the other side’s case and enables the Tribunal to make Case Assessment Directions to structure the hearing. In appropriate cases, adoption of the witness statements may take the place of examination-in-chief of the witness. Witness statements should therefore be detailed and set out the particular evidence that the witness will give, rather than just general topics. A witness statement should be filed for each witness, including an applicant or individual respondent. Where the Application or Response itself makes clear the proposed testimony, the witness statement may simply confirm that the summary of facts in the Application or Response is complete and reflects the evidence that will be given by the applicant or individual respondent.

8The respondent’s witness statements read as follows:

1. Donna Cardinal – Store Manager – among other things, Ms. Cardinal will provide evidence relating to the scheduling change, her interactions with [the applicant] in relation thereto, and the manner in which Walmart is prepared to accommodate [the applicant].

2. Laura Craik – Front End Manager – same as above.

While the applicant has filed more detailed witness statements than the respondent, she has filed no witness statement at all for herself (although I note that the Application is detailed and may well reflect her complete evidence).

9I find that the respondent’s witness statements do not comply with Rule 17. They provide no detail about the particular evidence that will be given or what the respondent’s version is of the interactions and the manner in which it is prepared to accommodate the applicant. The applicant has not complied with Rule 17 in that she had not specified whether the Application fully summarizes the applicant’s evidence.

10The parties are therefore directed to file amended witness statements within ten days of this Interim Decision.