Alan Han v. Rotman School of Management, University of Toronto, 2012 HRTO 2304

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alan Han Applicant

-and-

Rotman School of Management, University of Toronto Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Date: December 6, 2012 Citation: 2012 HRTO 2304 Indexed as: Han v. Rotman School of Management

WRITTEN SUBMISSIONS

Alan Han, Applicant Self-represented

Rotman School of Management, University of Toronto, Respondent Robert A. Centa, Counsel

1The applicant filed this Application under section 34(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on June 7, 2012, alleging discrimination with respect to services, goods and facilities on the basis of disability. The applicant alleges that the respondent University treated him unfairly and failed to provide him with appropriate accommodation during his course of study.

2The respondent filed a Response on August 15, 2012, denying the allegations. The respondent alleges that multiple accommodations were provided to the applicant and that the applicant failed to cooperate with the University’s accommodation efforts.

3The applicant has filed a Request for an Order during Proceedings (“Request”) asking that he be provided with anonymity in the Tribunal process. The applicant submits that private medical information has been presented as part of the Application and that he does not wish to be identified due to the sensitive nature of the information.

4The respondent filed submissions opposing to the applicant’s Request. The respondent submits that there is nothing about the applicant, the facts alleged, or the information that justifies departing from the rule that Tribunal hearings should be open and parties identified.

DECISION

5It is well-established principle that there is a public interest in transparent legal processes and that, in accordance with Rule 3.10 of the Tribunal’s Rules of Procedure, human rights hearings are intended to be open proceedings. The Tribunal’s jurisprudence has held that anonymity or publication bans should be limited to exceptional circumstances: Marakkaparambil v. Ontario (Health and Long-Term Care), 2007 HRTO 24; Lazarevic v. York University, 2010 HRTO 1601.

6This Tribunal in Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230, discussed the various principles that require consideration when dealing with requests for anonymity and publication bans of parties’ identities. The Tribunal held at paras. 9 and 10:

Although a publication ban is a discretionary remedy, it is an extraordinary measure that is used to ensure fairness of the hearing process and/or protect significant privacy interests. The importance of an open human rights process is expressed in the Tribunal’s Rules of Procedure, which state that the Tribunal is committed to “a fair, open and accessible process”. This is also reflected in Rule 3, which provides that the “Tribunal’s hearings are open to the public”, except when appropriate to protect the confidentiality of personal or sensitive information.

Publication bans and anoymization orders have been issued in certain types of human rights cases, such as those involving minors or highly personal or sensitive information, for example in sexual harassment complaints. The party seeking the publication ban bears the onus of proving that there is a real and substantial risk to the hearing’s due process and/or deleterious implications to confidentiality: see for example, Hogan v. Ontario (Health and Long Term Care), 2003 HRTO 6, and C.M. v. York Region District School Board, 2009 HRTO 735. The Tribunal must be satisfied that the personal and public interests collate in favour of safeguarding privacy, thereby outweighing the principle of disclosure and the desirability of a transparent human rights process.

7I find that the applicant’s request does not highlight any exceptional conditions of sensitivity or privacy necessitating anonymity. Human rights applications often include personal information. The information disclosed in this Application about the applicant’s disability is not of the nature or degree of private or intimate information present in those cases where bans/anonymity have previously been ordered. As recognized in Visic, above, most disability cases involve some disclosure of personal information surrounding an applicant’s disability, or the basis for the perceived disability, in order to meet the definition in section 10 of the Code and establish that there is a Code-protected ground.

8I find that the applicant has not articulated any unique concerns or issues of privacy that justify the extraordinary measure of anonymization. Accordingly, the applicant’s request for anonymity is denied.