HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
K.M.
Applicant
-and-
Sunnybrook Health Sciences Centre and Ron Kodama
Respondents
INTERIM DECISION
Adjudicator: Keith Brennenstuhl
Indexed as: K.M. v. Sunnybrook Health Sciences Centre
Introduction
1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services or facilities because of disability, sex including sexual harassment, pregnancy and gender identity.
2The applicant, a female to male transgendered individual, has filed a Request for Order During Proceedings (“Request”) seeking an anonymization order and an order allowing the applicant to amend his Application.
3The personal respondent does not oppose the applicant’s Request and does not contest the submissions and facts put forward by the applicant in support of the Request. However, the personal respondent reserves the right to contest the facts and submissions put forward by the applicant in support of the Request, should they become relevant to any matter at issue at a future stage of the proceeding.
4The organizational respondent has not filed a Response to the Request.
Anonymization
5Rule 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.” This rule has been invoked as a basis upon which to anonymize parties in proceedings before the Tribunal. See, for example, XY v. Ontario (Government and Consumer Services), 2010 HRTO 1906.
6In considering such an order one must be sensitive to the issue of privacy that must be balanced against the principle of transparency in hearings. It has been recognized that anonymization impinges less of these principles than a publication ban, which is not requested in this case. The Tribunal recognized the limited effect of anonymization in C.M. v. York District School Board, 2009 HRTO 735:
The use of initials will only affect the text provided by the Tribunal to the parties and the public, including the Canadian Legal Information Institute, on whose web site the Tribunal’s decisions are published. (para. 25)
7The Tribunal indicated in XY that in the case of a transsexual applicant with “obvious privacy interests at stake” it was:
…an appropriate case in which to make an order pursuant to Rule 3.11 to protect the confidentiality of the acutely personal and sensitive information relating to the applicant’s identity as a transgendered person by anonymizing the applicant…(para. 7).
The Tribunal further held:
The identification of the applicant by the initials “XY” in the Tribunal’s decisions is justified in the circumstances of this case, based on the potential stigma the applicant would likely face if publically identified as a transgendered person and the fact that such identification would compromise the applicant’s ability to live in her felt gender. (para. 8)
8Similarly in the present case should the applicant be publically identified as a transsexual that would significantly compromise his ability to live as a man and could expose him to “social stigma and prejudice in our society” (XY, para. 10).
9In all the circumstances, including the fact that personal respondent opposes neither the request nor the facts and submissions on which it is based, I grant the Request for anonymization. The applicant shall be referred to by the pseudonym “KM” in these proceedings.
Request to Amend
10The Applicant requests that the Application be amended to increase the amount of general damages from $30,000.00 to $50,000.00 and to include the following public interest remedies:
a. The organizational respondent retain “The Church Street Community Centre” to conduct trans-specific training. The training is to be mandatory for Dr. Kodama, management staff and patient advocates, as well as others who wish to attend;
b. The organizational respondent amend its “Patient’s Rights” policy to include gender identity; and,
c. The organizational respondent to prepare a policy consistent with the Ontario Human Rights Commission’s Policy on discrimination and harassment because of gender identity.
11Rule 1.7(c) of the Tribunal’s Rules of Procedure indicates that the Tribunal may allow any filing to be amended in order to provide for the fair, just and expeditious resolution of any matter before it.
12To begin I note that the amendment request has not been contested by either of the respondents. I also note that the amendment Request does not require a change to the underlying facts as pleaded by the applicant and does not seek to amend or add any new allegations to which the respondents would be required to file revised responses.
13The Tribunal considered a request to amend the remedies sought in an application in Robert v. 289900 Ontario, 2009 HRTO 653. The Tribunal found no prejudice , as ultimately the remedy arises from the finding of discrimination and parties would have an opportunity to make submissions on the proper relief during the course of the hearing:
Ultimately any remedy awarded by the Tribunal arises from a finding of discrimination and would be made in consideration of the parties’ arguments as to remedy. I cannot see the prejudice of allowing the amendment detailing the applicant’s possible position as to appropriate remedy. (para. 13)
14In view, of the nature of the amendments requested, the absence of any prejudice and the absence of any objection from the respondents, I see no reason to deny the amendments. I order that the Application be amended accordingly.
order
15The Tribunal makes the following orders:
a. The applicant shall be referred to by the pseudonym KM in these proceedings.
b. The Application is amended by increasing the amount of general damages requested to $50,000.00 and by including the public interest remedies outlined in paragraph 10 above.
Dated at Toronto, this 1st day of August, 2012.
Signed by
Keith Brennenstuhl
Vice-chair