HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

T.F.

Applicant

-and-

McDonald’s Restaurants of Canada Ltd.

Respondent

INTERIM DECISION

Adjudicator: David A. Wright

Date: October 27, 2011

Citation: 2011 HRTO 1946

Indexed as: T.F. v. McDonald’s Restaurants of Canada

[1] This is an Application filed pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19. The applicant alleges discrimination in goods, services and facilities because of religion.

[2] Together with his Application, the applicant, who notes in his narrative that he is a J.D. candidate graduating in 2014, filed a Request for Order During Proceedings asking for a “closed-door hearing” and not have the decision or proceedings reported. His argument in this regard states merely that any publication “could invite reprisal and further religious bigotry”, and that it is “imperative to my personal safety and well-being”. The Request for Order was not delivered to the respondent as required by the Tribunal Rules, but in the circumstances, it is not necessary to require delivery nor to obtain submissions from the respondent on this issue.

[3] The applicant’s request is denied. The Tribunal’s jurisprudence on such issues is well established, and the circumstances cited in the applicant’s Request for Order do not justify a closed hearing, publication ban, or anonymization.

[4] The relevant principles were set out in C.M. v. York Region District School Board, 2009 HRTO 735 at paras. 19-22 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 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”. 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: see Dagenais, supra, Mentuck, supra, and August, supra.

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.

[emphasis added]

[5] There is no evidence or basis to support the applicant’s bald assertion that an open hearing would affect his safety or lead to reprisals. The applicant’s submissions do not warrant overriding the strong public interest in free expression and open Tribunal proceedings.

[6] The Application and Request for Order are delivered to the respondent together with a copy of this Interim Decision, together with a Notice of Application requiring a response within 35 days as required by the Tribunal Rules.

[7] I am not seized.

Dated at Toronto, this 27^th day of October, 2011.

“signed by”

David A. Wright

Associate Chair