HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Mary-Lou VandenBroek
Applicant
-and-
Villa Otthon, Aykler & Co. Realty Ltd.,
and Aykler Real Estate Inc.
Respondents
INTERIM DECISION
Adjudicator: Mark Hart
Indexed as: VandenBroek v. Villa Otthon
WRITTEN SUBMISSIONS
Mary-Lou VandenBroek, Applicant ) Bruce Best,
) Counsel
Villa Otthon, Aykler & Co. Realty Ltd., ) David Strashin,
and Aykler Real Estate Inc., Respondents ) Counsel
1This Interim Decision addresses a Request for Order during Proceedings filed by the applicant and dated May 1, 2012, seeking production of certain documents from the respondents and full compliance with the respondents’ pre-hearing obligations under the Rules, and requesting anonymization of the applicant’s name.
REQUEST FOR PRODUCTION AND COMPLIANCE WITH RULES
2The applicant seeks production of certain documents which were identified in the respondent’s Response. Subsequent to being served with the Request, the respondent disclosed these documents on May 10, 2012.
3The applicant also seeks an order requiring the respondents to comply with Rules 16 and 17 of the Tribunal’s Rules of Procedure, which require a party to disclose a copy of all arguably relevant documents in their possession, to file with the Tribunal a copy of all documents they intend to rely upon at the hearing, and to provide a list of witnesses and a brief statement summarizing each witness’ expected evidence.
4Without limiting the generality of the foregoing, the applicant seeks an order requiring the respondents to disclose any documents of any kind, including complaints, incident reports, letters, memos, e-mails or orders relating to cigarette or drug smoke in the stairwells of 4049 Dundas St. West, Toronto for the period from December 2010 to February 2012 and any correspondence, memos, e-mails, incident reports or other documents from the Toronto Police respecting complaints about drug use on the premises from December 2010 to February 2012.
5On May 10, 2012, the respondents disclosed four documents in addition to the aforementioned specific documents requested by the applicant, which generally are correspondence from and to the applicant or her legal counsel. (In this regard, I note that the cover letter from respondents’ counsel identifies correspondence from the respondent Villa Otthon dated May 8, 2008 but attaches correspondence from the applicant dated April 22, 2008. If there is correspondence dated May 8, 2008 from the Villa Otthon, then this is an arguably relevant document that should be disclosed immediately and also filed with the Tribunal if the respondents intend to rely upon this document at the hearing).
6The respondents did not, however, indicate that this documentary production was in full compliance with their obligation to disclose all arguably relevant documents in their possession, nor did the respondents make any submissions in response to the two further categories of documents sought by the applicant.
7The respondents have an obligation to fully comply with the requirement in Rule 16 to disclose all documents in their possession that are arguably relevant to the matters at issue in this proceeding. On the basis of the material filed to date, I am not satisfied that this obligation has been fully complied with by the respondents. Accordingly, within 7 calendar days of the date of this Interim Decision, I order the respondents to fully comply with its obligation under Rule 16 and to confirm to the Tribunal and the applicant that they have done so.
8With regard to the first of the two specific categories of documents sought by the applicant, I find that documents relating to cigarette or drug smoke in the stairwells at the premises which are the subject of this proceeding are arguably relevant and ought properly to be disclosed. The impact of such smoke on the applicant and whether this amounts to discrimination in the occupancy of accommodation because of disability is the central issue in this proceeding. Accordingly, documents relating to the issue of such smoke in the stairwells of such premises in my view bear directly on this central issue. Accordingly, I order the respondents within 7 calendar days of this Interim Decision to disclose to the applicant any documents of any kind, including complaints, incident reports, letters, memos, e-mails or orders relating to cigarette or drug smoke in the stairwells of 4049 Dundas St. West, Toronto for the period from December 2010 to February 2012.
9With regard to the second of the two specific categories, I note that the request is for any documents from the Toronto Police respecting complaints about drug use on the premises from December 2010 to February 2012. The respondents’ obligation under the Rules only extends to documents in their possession. Accordingly, I am only prepared to order disclosure of such documents to the extent that they are in the respondents’ possession, particularly as there is no indication that the respondents would have any particular right to require disclosure of such documents by the Toronto Police. In addition, given the nature of the matters at issue in this proceeding, which relate to drug or cigarette smoke in the stairwells at the premises, it is my view that the request is over-broad as currently drafted.
10Accordingly, I order the respondents within 7 calendar days of this Interim Decision to disclose to the applicant any correspondence, memos, e-mails, incident reports or other documents from the Toronto Police in their possession respecting complaints about drug use on the premises arising from or relating to any issue of drug smoke in the stairwells during the period from December 2010 to February 2012.
11With regard to the requirements of Rule 17, I note that the respondents have not yet filed their list of witnesses that they intend to call at the hearing or a summary of each witness’ expected evidence. I hereby order the respondents to fully comply with this obligation within 7 calendar days of the date of this Interim Decision. I note that Rule 17.4 sets out the consequences of a failure to comply with this obligation, namely that no party may present a witness whose name and summary of evidence was not filed, except with permission of the Tribunal.
REQUEST FOR ANONYMIZATION
12The applicant also requests an order to anonymize the applicant’s name in this proceeding, including the retroactive anonymization of my prior Interim Decision in this matter (2011 HRTO 279), pursuant to Rule 3.11 of the Tribunal’s Rules.
13Rule 3.11 of the Tribunal’s Rules of Procedure states:
The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.
14The Tribunal’s practice has been to consider any request to keep the name of a party or other information confidential as an exception to the general principle that the Tribunal’s process should be open and transparent in accordance with the province’s legal system. See TA v. 60 Montclair, 2009 HRTO 369; S. and C. v. Toronto Police Services Board, 2008 HRTO 437. The Tribunal therefore need to be satisfied that the applicant’s request to anonymize her identity outweighs the Tribunal’s interest in its processes being open and transparent.
15With regard to the Tribunal’s interest in its processes being open and transparent, in C.M. v. York Region District School Board, 2009 HRTO 735, 2009 HRTO 735, this Tribunal stated at para. 20:
(…) 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 [are] 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 particular parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems.
16The applicant seeks an anonymization order on the basis that this proceeding will include evidence relating to the impact on her mental health of living in the apartment and evidence that she has been diagnosed with post-traumatic stress disorder. The applicant also states that she will be presenting evidence relating to the anxiety she suffered, and that the evidence will include “extremely personal and sensitive recordings of calls made to the respondents, while at her most vulnerable”.
17The applicant relies upon this Tribunal’s decision in S.D. v. Grand River Hospital, 2010 HRTO 1653, where it is stated (at para. 6):
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. I recognize that a sealing order and anonymization are rare and extraordinary steps because of the importance of openness and transparency in legal proceedings, but, in my view, because of the stigma attached to mental illness and the fact that the entries from the chart are of an extremely personal and sensitive nature, this is one of those exceptional cases where there is a narrow and overriding need to protect the applicant’s privacy interests.
18In my view, the circumstances in the S.D. decision are vastly different than the instant case. The situation in S.D. involved an applicant who suffered an acute mental health crisis that required her to be taken by the police to a hospital emergency room. Thereafter, the applicant was treated as a psychiatric out-patient. The issues addressed in the case arose from the applicant’s psychiatric records, in which the applicant alleged that staff who were treating her had made discriminatory comments.
19No such situation exists here. I understand that the applicant will give evidence regarding the impact of the events on her, including that she suffered from anxiety and was diagnosed with PTSD. That kind of impact evidence is not uncommon in proceedings before this Tribunal and in my view, without more, does not justify an anonymization order. With regard to the recordings of calls made to the respondents, I do not understand the basis upon which this supports the granting of an anonymization order. The applicant may have been upset and feeling vulnerable at the time of these calls and may feel some sensitivity about what she said, but I do not view that as a proper basis upon which to justify a departure from this Tribunal’s commitment to openness and transparency in its processes.
20Accordingly, the applicant’s request for an anonymization order is denied.
ORDER
21For the foregoing reasons, I hereby make the following Order:
a. Within 7 calendar days of the date of this Interim Decision, the respondents shall
fully comply with their obligation under Rule 16 to disclose all arguably relevant documents in its possession and confirm to the Tribunal and the applicant that they have done so;
disclose to the applicant any documents of any kind, including complaints, incident reports, letters, memos, e-mails or orders relating to cigarette or drug smoke in the stairwells of 4049 Dundas St. West, Toronto for the period from December 2010 to February 2012;
disclose to the applicant any correspondence, memos, e-mails, incident reports or other documents from the Toronto Police in the respondents’ possession respecting complaints about drug use on the premises arising from or relating to any issue of drug smoke in the stairwells during the period from December 2010 to February 2012; and
fully comply with their obligation under Rule 17 to deliver a witness list and a summary of each witness’ expected evidence.
Dated at Toronto, this 17th day of May, 2012.
“Signed by”
Mark Hart
Vice-chair