HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Faye Hendy
Applicant
-and-
Nartech Metal Products Ltd.
Respondent
INTERIM DECISION
Adjudicator: David Muir Date: April 23, 2012 Citation: 2012 HRTO 810 Indexed as: Hendy v. Nartech Metal Products Ltd.
WRITTEN SUBMISSIONS
Faye Hendy, Applicant ) Chris Surowiak, Representative Nartech Metal Products Ltd., Respondent ) Jeanine Watt, Counsel
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 in employment on the basis of disability. This Interim Decision deals with respective Requests for Order During Proceedings (“Requests”) filed by the respondent and applicant.
The Applicant’s Request
2The applicant seeks an Order requiring the following:
a. An order directing the respondent to provide the applicant with specifics with respect to treating physicians, chiropractors, physiotherapists, psychiatrists, psychologists, hospitals, clinics, and or any other health care practitioners, in particular from which the respondent is seeking any or all of the following: medical reports, clinical notes, x-rays, assessments, and examinations;
b. An order directing the respondent to pay for any and all medical records they are seeking to obtain;
c. An order directing the respondent to obtain the information they are seeking from the applicant's WSIB file directly from WSIB as the respondent has full access to this file.
3The respondent opposes each of these Requests.
4The Requests of the applicant are denied. By way of background, these Requests arise out of an Order previously made by the Tribunal in response to a previous Request filed by the respondent. That Order was as follows:
The applicant will deliver to the respondent within 28 days of the date of this Interim Decision all medical reports, clinical notes, x-rays, assessments and examinations from all treating physicians, chiropractors, physiotherapists, psychiatrists, psychologists, hospitals or clinics or any health care practitioners, related to her back injury dating from September 24, 2009 to present.
5I note that this Request was filed on April 13, 2012. The Interim Decision containing the Orders above was released to the parties on March 22, 2012. The late filing of this Request is not explained.
6The order is clear on its face and the time for compliance is approaching. The applicant is directed to comply with this Order forthwith.
7As regards to the Request requiring the respondent to pay the cost of producing this material, the applicant provides no authority for such an Order. The applicant cites no particular reason for the Request other than expense. The parties to these proceedings are expected to bear their own costs in engaging the Tribunal process. This Request is denied as well.
8As regards the final Request of the applicant, no reason for this Request is provided. The respondent states that this is in direct contrast to the applicant’s prior position when it sought to block the respondent’s access to the WSIB file. The applicant’s Request in this regard is denied.
9In a further Request filed by the applicant on April 18, 2012, the applicant seeks the redaction of her name from prior Interim Decisions in these matters and anonymization of further Decisions of the Tribunal.
10The respondent opposed this Request.
11The Request is denied.
12The Request of the applicant is extraordinary and is one that will not often be granted. Our system of justice requires that its processes be fair and be seen to be fair. 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.
13Anonymization 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 that would justify that level of 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 a proper assessment of the personal and public interests in favour of safeguarding a party’s privacy outweighs the principle of disclosure and the desirability of a transparent human rights process.
14The concerns of the applicant are not persuasive. The applicant states that by her name appearing on Tribunal Decisions, her “alleged medical condition” will be exposed. The details which may be disclosed about the applicant’s medical condition are not of the kinds of personal information that would normally justify the anonymization of Tribunal decisions. Almost all disability human rights 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. The applicant has not articulated any particular concerns that would justify the extraordinary Request she has made.
15The respondent has Requested an extension of time to file their materials in light of the applicant’s current failure to have provided all of her relevant documents. The respondent has also sought an adjournment of the hearing citing the intransigence and delay tactics of the applicant.
16The respondent’s Requests are premature at this stage. The respondent will deliver and file their materials based on the materials currently available to them. In the event that further material is forthcoming from the applicant, further Directions may be made. While the applicant appears to have been less than cooperative in the production process, as witnessed most evidently by the most recent Requests, I am not satisfied that the remedy at this stage is to adjourn the hearing.
17The Tribunal makes the following Directions:
a. The applicant will comply with the Orders made on March 22, 2012 forthwith;
b. The respondent will deliver and file their materials in accordance with my rulings above before May 1, 2012; and
c. The respondent may deliver and file supplementary and/or amended materials, if any, within 14 days of receiving the applicant’s materials as ordered above.
13I am not seized of this case.
Dated at Toronto, this 23rd day of April, 2012.
”signed by”____________
David Muir
Vice-chair