T.F. v. McDonald’s Restaurants of Canada, 2011 HRTO 2103

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

T.F. Applicant

-and-

McDonald’s Restaurants of Canada Ltd. Respondent

decision

Adjudicator: David A. Wright Date: December 1, 2011 Citation: 2011 HRTO 2103 Indexed as: T.F. v. McDonald’s Restaurants of Canada

1This Decision addresses: (i) the applicant’s request to have his initials used instead of his name in the Tribunal’s previous Interim Decision in this matter, 2011 HRTO 1946 (the “Interim Decision”); and (ii) the applicant’s request to withdraw the Application.

BACKGROUND

2The applicant filed the Application on September 14, 2011, alleging discrimination with respect to goods, services and facilities because of creed. In an addendum dated October 18, 2011, he added the ground of race (this addition was inadvertently not included in the Tribunal’s prior Interim Decision). In his Application, the applicant identifies that he is a law student.

3The Application that was filed was filed only on behalf of the applicant; there was no co-applicant listed. In section 19 of the Application form, in which parties are directed to identify the witnesses they intend to rely upon at the hearing, the applicant listed none.

4The applicant signed the Application form, which ends with the following declaration:

To the best of my knowledge, the information in my Application is complete and accurate.

I understand that information about my Application can become public at a hearing, in a written decision, or in other ways determined by Tribunal policies.

I understand that the Tribunal must provide a copy of my Application to the Ontario Human Rights Commission on request.

I understand that the Tribunal may be required to release information requested under the Freedom of Information and Protection of Privacy Act (FIPPA).

5Together with his Application, the applicant filed a Request for Order During Proceedings asking for a “closed-door hearing” and not to have the decision or proceedings reported. His argument in this regard stated merely that any publication “could invite reprisal and further religious bigotry”, and that it is “imperative to my personal safety and well-being”.

6Rule 19.4 of the Tribunal’s Rules of Procedure provides that a party must include all written submissions and facts in support of a Request for Order, and Rule 19.7 provides that the Tribunal will decide whether a Request will be heard in writing, in person or electronically. The cover page of Form 10, Request for an Order During Proceedings, reads as follows:

The Tribunal will determine whether a Request for an Order will be heard in writing, in person or electronically and, where necessary, will set a date for the hearing of the Request. This Request may be heard on the basis of Form 10 alone.

The Form 10 contains the following statement:

The Tribunal may release information about an Application in response to a request made under the Freedom of Information and Protection of Privacy Act. Information may also become public at a hearing, in a written decision, or in accordance with Tribunal policies. At the request of the Commission, the Tribunal must provide the Commission with copies of applications and responses filed with the Tribunal and may disclose other documents in its custody or control.

7It appears that on or about October 21, 2011, the applicant sent the Tribunal a request seeking to add a minor applicant as a co-applicant. He states that the person “was a witness to the alleged incident but not necessarily as a direct party to the communication between myself and the respondent – but the co-Applicant is a first-hand observer and also a direct party to the transaction of the goods & services, that is the subject of this discrimination complaint”. The applicant purported to be a litigation guardian for the minor applicant, although he does not state that he is the parent of the minor. This submission did not come to my attention prior to the Interim Decision of October 27, 2011 and it appears that it may not have been received by the Tribunal, although the reasons are unclear. The Interim Decision denied the applicant’s Request for Order, with reasons.

8On November 10, 2011, the applicant filed written submissions with the Tribunal, that read in relevant part as follows:

…It appears that I was either misinformed and/or I had misunderstood as to how the some of the decision reporting publication procedures and public disclosure works.

Prior to initiating my complaint, I was informed by the HRTO legal support line that I should fill out and put forward something called a "Form 10" application seeking an order of anonymity, which I did so accordingly. I was also informed that once my application was filed, a separate hearing/proceeding would take place in order to determine the merits of my "Form 10" application (with input from the Respondents), and as to whether or not an order would be made.

My sole reason for initiating this rare request was simply to have my name redacted in order to protect the identity of a disabled minor who is a witness to the alleged incident. In fear of reprisal and concern for safety, I did not want my name publicly disclosed - because any mention of my name could easily identify the child. I am a litigation guardian for the minor, also a co-applicant.

To my sheer surprise, I was handed an "interim decision" (dated October 27th, 2011) where adjudicator Mr. David A. Wright ruled that my request for anonymity was not compelling enough to the point that it outweighed the open tribunal process. While I fully respect and I do appreciate Associate Chair Wright's ruling, in good faith, I had no idea that this interim decision would:

(i) Be made absent a formal hearing or an opportunity for me to make submissions; and/or

(ii) Be reported, published, and open to public view; i.e. indirectly identifying the minor.

In light of Associate Chair Wright's decision, I am prepared to withdraw my initial complaint because any public mention of my name will conclusively identify the young minor. I was not aware that a decision of a "Form 10" application seeking anonymity itself would be made public; it would defy the whole purpose because the objective was to seek anonymity in the first-place.

Given these unique circumstances - and with the utmost respect to the Tribunal's polices – I am hereby requesting that the Tribunal withdraw/dismiss my complaint and please consider either purging the interim decision from public access or at the very least kindly publish the matter under the anonymity of my first and last name's initials…

9On November 10, 2011, the Registrar’s Office wrote to the applicant, who responded as follows:

Further to my previous response, it appears that the citation still appears without being initialized. I will respectfully remind the HRTO Registrar’s Office that per Rule 3.11.1 any naming that could identify a minor prohibited.

I trust that the Registrar’s Office will act on this expeditiously.

DECISION

10As the applicant has now withdrawn his Application, there is no need to deal with the question of whether the minor should be added as a co-applicant.

11I turn now to the issue of anonymization. Rule 3.11.1 reads as follows:

Unless otherwise ordered, the Tribunal will use initials in its decisions to identify children under age 18 and the next friend of children under 18. It may use initials to identify other participants in the proceeding if necessary to protect the identity of children.

12I find that it is not necessary to make an Order under Rule 3.11.1 to initialize the applicant’s name in the Interim Decision or this Decision to protect the identity of a child. The following are my reasons for this decision:

• The applicant has given no basis, other than his bald assertion, why the mere publication of the applicant’s name in an Interim Decision or this Decision would identify the minor who was with him during the alleged incident, and there is no reason to infer this would be the case. While the applicant claims to be the minor’s litigation guardian, there is nothing to suggest that merely being the minor’s litigation guardian would identify the minor, Moreover, this assumes that the applicant had authority to be the litigation guardian; the basis for that authority is not clear from the Application.
• The applicant was not misled by the HRTO about the process, nor was it unclear, as he suggests. The HRTO does not have a “legal support line”. The applicant may have received advice from the Human Rights Legal Support Centre. This is an independent organization with the mandate of providing legal assistance to applicants. The HRTO’s documentation made it fully clear in various places that the Request for Order could be decided on the basis of the materials filed, and that once an Application was filed personal information could appear in a written decision.
• The nature of legal processes is that parties may be identified in public decisions. This is true for applicants and plaintiffs, who make a choice about whether to initiate proceedings, and respondents and defendants, who have no such choice but may find themselves identified in a decision nevertheless. The fact the applicant may not wish to have his name made public does not, in and of itself, justify anonymization. As stated in the Interim Decision, part of the Tribunal’s mandate is to provide a fair, open and accessible process to deal with applications made under the Code.

13Therefore, the applicant’s name will not be anonymized in this Decision or the Interim Decision.

14An applicant may withdraw an Application as of right prior to the filing of a Response (see Rule 10.5). The Application is withdrawn.