Cybulski v. Canadian Corps of Commissionaires, Ottawa Division, 2013 HRTO 1773

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tyler Cybulski

Applicant

-and-

Canadian Corps of Commissionaires, Ottawa Division

Respondent

INTERIM DECISION

Adjudicator: Paul Aterman

Date: October 21, 2013

Citation: 2013 HRTO 1773

Indexed as: Cybulski v. Canadian Corps of Commissionaires, Ottawa Division

APPEARANCES

Tyler Cybulski, Applicant Self-represented

Canadian Corps of Commissionaires, Ottawa Division, Respondent David Law, Counsel

background

1This Interim Decision deals with a request by the respondent for a publication ban of an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of creed. The respondent’s request is for a publication ban on the hearing and a sealing order on the Tribunal’s file, but for the reasons below I find this request to be overly broad. Instead, a partial publication ban is appropriate in the circumstances of this case, as it strikes a balance between the right of the respondent to present its case, the public interest in safeguarding information protected under the federal Security of Information Act, R.S.C., 1985, c. O-5 (“the SIA”), and the public interest in open justice.

2The respondent is a non-profit organisation that provides security services, most often by ensuring the security of the physical premises and assets of its customers. Among its customers are departments and agencies of the Government of Canada. Access to the premises and assets of the Government of Canada is determined by a system of security clearances which is managed by the federal government. Most of the respondent’s employees who work as Commissionaires and deliver security services to the federal government in the Ottawa region are required to be cleared to the “Secret” level. However, because of the nature of their work, certain departments or agencies of the Government of Canada require a higher level of security clearance, at the “Top Secret” level. In order to obtain a Top Secret security clearance an individual has to pass an extensive and detailed background check.

3The applicant was an employee of the respondent. He was invited by the respondent to participate in a pre-screening interview in March of 2011 for a position at a federal department that requires the respondent’s employees to hold a Top Secret clearance.

4The purpose of the pre-screening process was to enable the respondent to select candidates that it would then identify for the customer department as potential candidates for a Top Secret security clearance. The respondent plays no role whatsoever in the security clearance process itself. It simply forwards to the Government of Canada a list of names of employees that it has selected. The federal authorities charged with running the security clearance process then decide whether and how they will determine if any of those employees should be granted a Top Secret clearance.

5The applicant was called for an interview as part of the pre-screening process. The interview panel consisted of two of the respondent’s employees, both of whom worked on the premises of the customer department at the time. At the outset of the interview the applicant was asked a question about his views on the role of Canada in conflicts overseas. He alleges that he answered that he was opposed to Canada’s involvement in such conflicts and that his answer was motivated by his religious belief. He maintains that this answer disqualified him from further consideration by the respondent and that the respondent’s decision not to put his name forward for consideration for a Top Secret security clearance by the Government of Canada was discriminatory.

the respondent’s request for a publication ban

6In the week before the hearing of this Application the respondent notified the applicant and the Tribunal that it intended to request a publication ban in order to be fully able to present its case. As the respondent’s affidavit and written argument in support of the request were not available to me until after the start of the hearing, the request was initially addressed through oral argument and I made an oral ruling that granted a partial publication ban pending the issuing of this Interim Decision. The scope and duration of the partial ban was explained to the parties on the first day of the hearing and then to a representative of the media who was present on the second day of the hearing. They all confirmed that they understood the terms of that interim order.

7The evidence in support of this request is set out in the affidavit of Jim Britton, the respondent’s Manager of Employee and Labour Relations. He states that in the week before the hearing an employee, whom the respondent was intending to call as one of its witnesses and who is the respondent’s site supervisor at the customer department, was advised by the customer department that it had serious concerns about the risk of disclosure during the hearing of its identity, the nature of its operations and the identity of contractors working on its premises. It advised the site supervisor that if his identity were disclosed during the course of the hearing, it could exercise its contractual right to no longer allow him access to the site.

8The broad purpose of the SIA is to protect the health, safety, security or economic or financial well-being of the people of Canada or the functioning of any government in Canada by safeguarding protected information from foreign entities or terrorist groups.

9The respondent’s position is that the customer department’s location is a “prohibited place” within the meaning of s. 2(1) of the SIA, which reads as follows:

In this Act,

...“prohibited place” means

(a) any work of defence belonging to or occupied or used by or on behalf of Her Majesty, including arsenals, armed forces establishments or stations, factories, dockyards, mines, minefields, camps, ships, aircraft, telegraph, telephone, wireless or signal stations or offices, and places used for the purpose of building, repairing, making or storing any munitions of war or any sketches, plans, models or documents relating thereto, or for the purpose of getting any metals, oil or minerals of use in time of war,

(b) any place not belonging to Her Majesty where any munitions of war or any sketches, plans, models or documents relating thereto are being made, repaired, obtained or stored under contract with, or with any person on behalf of Her Majesty or otherwise on behalf of Her Majesty, and

(c) any place that is for the time being declared by order of the Governor in Council to be a prohibited place on the ground that information with respect thereto or damage thereto would be useful to a foreign power;

10The practice of the customer department is to not publicly disclose the identity or work location of any of its employees or of any contractors who are allowed on to its premises. It claims that doing so could violate s.4 of the SIA, which outlines offences for failing to safeguard information that is protected under that Act. Essentially, the customer department is of the view that public disclosure of the identity or work location of a contractor could expose the contractor to pressure or coercion by persons or organisations hostile to Canada’s interests and whose aim is to obtain protected information.

11From this the respondent argues that its ability to present its case is compromised by the risk of disclosure (during or outside of the hearing process) of the identity of the customer department, its activities or the identity of the respondent’s employees who work on the site of the customer department. Initially it intended to call the site supervisor as a witness because he participated as a member of the panel that interviewed the applicant. It has since decided not to call him as a witness, but it argues that the risk of disclosure of the identity of the site supervisor or any of the other information outlined above still remains because other witnesses may disclose that information, whether inside or outside the hearing process. This, in turn, has a chilling effect on how it cross-examines the applicant and on how it leads evidence from the remaining witnesses it intends to call.

12The respondent maintains that its concerns can be addressed through a full publication ban on the proceedings and a sealing of the Tribunal’s file. In the alternative it requests a partial ban that would prevent identification of the customer department, its activities and the identity and activities of its employees who work at the site of the customer department.

13The applicant opposes any form of publication ban on the grounds that there is a public interest in Tribunal proceedings being conducted in the open.

the test for imposing a publication ban

14The Tribunal’s Rules of Procedure make clear in Rules 3.10-3.12 that the default position is that Tribunal proceedings are public proceedings. Implicit in that general principle is the recognition that a publication ban is an extraordinary remedy which impinges on constitutionally-protected rights such as the freedom of expression of the parties and of third parties, including observers of Tribunal hearings and the media. Where a request for a publication ban is made the Tribunal has applied the test set out by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442.

15Mentuck notes that a publication ban should only be directed when such an order is necessary to prevent a serious risk to the proper administration of justice, because reasonable alternative measures will not prevent the risk, and when the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused (or responding party) to a fair and public trial, and the efficacy of the administration of justice. The party bringing the application has the burden of displacing the presumption of openness. That party must also bring forward sufficient evidence to both enable the adjudicator to apply the test in an informed manner, and to allow for review. Although Mentuck was a criminal case, the Tribunal has confirmed that these principles apply to its proceedings; see for example Marakkaparambil v. Ontario (Health and Long-Term Care), 2007 HRTO 24.

16Where it is satisfied that a publication ban should be imposed, the Tribunal then has a duty to determine the least intrusive means of doing so (see Hogan v. Ontario (Health and Long-Term Care), 2003 HRTO 6).

17The Tribunal often addresses concerns around the sensitivity of information that may be disclosed at a hearing by anonymizing such information, but anonymization does not extend to restrictions on publication other than by the Tribunal. As is noted in XY v. Ontario (Government and Consumer Services), 2010 HRTO 1906 at para. 8:

Anonymization orders do represent an encroachment on the principle of open justice and are therefore not to be granted lightly: C.M. v. York Region District School Board, 2009 HRTO 735 at para. 25. However, insofar as such an order does not prevent others from attending the hearing or restrict what they may publish, it is less onerous for an applicant to justify anonymization than to establish that a publication ban ought to be granted: C.M., supra.

applying the test in this case

18This request brings conflicting rights and interests into play. As a matter of procedural fairness the respondent has a right to cross-examine the applicant and present its evidence in circumstances in which it does not feel inhibited from mounting a full defence to the Application. In addition, there is an obvious public interest in upholding the integrity of the statutory regime that safeguards information vital to Canada’s interests. To the extent possible, the Tribunal’s process should not function in a way that undermines that interest. These are factors in favour of a publication ban, but they conflict with the public interest in transparency and open justice. What needs to be determined is where the appropriate balance of these rights and interests lies.

19Here I am satisfied that what may inhibit the respondent from presenting a vigorous defence of the Application are the risk that one of its employees may be barred from his current place of work, and that it fears that its defence of the Application may lead to a breach of the provisions of the SIA through disclosure of the information outlined in paragraph 11 above. The evidence of Mr. Britton sets out why those risks are present. In particular, his evidence establishes that the disclosure of the identity of an individual, whether a federal employee or a contractor, who works at a “prohibited place” increases the risk of disclosure of the kind of information the SIA is designed to keep protected. On that basis I am satisfied that anonymization of the relevant information by the Tribunal would not be a sufficient measure to enable the respondent to present its case. Because anonymization does not bind the parties and other persons who are not party to this Application it does not sufficiently protect against the risk of disclosure. For these reasons I am satisfied that it is appropriate to order a publication ban.

20However, the scope of the respondent’s request for a full publication ban is too broad. A balancing of the respondent’s right to procedural fairness, the public interest in upholding the integrity of the SIA regime and the public interest in open justice can be achieved through less intrusive means.

21While the areas of the evidence that give rise to the respondent’s legitimate concerns about disclosure may well arise in the course of the hearing and thus have a bearing on how the respondent presents its case, they are actually peripheral to the core issue raised by this Application. That issue is how the respondent conducted its pre-screening process in order to identify candidates that it would see as suitable for recommendation to the customer department. The respondent was doing so in order to see which of its employees it thought would be most likely to obtain a Top Secret clearance. However, it has no business, influence or impact on the granting of those clearances. That is entirely a matter for the Government of Canada, taking into account the particular needs of its departments and agencies. In other words, this Application is not about the alleged denial by the respondent of a contractual assignment that required a Top Secret security clearance, it is about the alleged denial by the respondent of an opportunity to be considered for a Top Security clearance by the Government of Canada, the granting of which might lead to a contractual assignment if the Government of Canada so decided.

22In that regard, and for the purposes of determining whether the respondent discriminated against the applicant in conducting its pre-screening interview, very little, if anything, turns on the identity of the customer department, the nature of its operations and the location or locations of its premises. Because the identity of the customer department is peripheral to the issue that needs to be adjudicated, the public interest in transparency and open justice can be minimally impaired by simply not identifying the department in question by name, and instead referring to it as “the customer department”.

23In relation to the identity of the respondent’s employees, for the purposes of determining whether the respondent discriminated against the applicant it is not necessary to disclose their identities. There are two employees in question. One current employee and one [now] former employee of the respondent conducted the pre-screening interview. The current employee is the site supervisor and the former employee is now employed by the Government of Canada and holds a Top Secret clearance.

24What is relevant for the issues that need to be adjudicated is what these employees of the respondent said and did before, during and after the interview. What their names are does not matter. Again, the public interest in open justice is minimally impaired if neither the site supervisor nor the former employee are identified by name. It is sufficient to simply refer to them respectively as the respondent’s “site supervisor”, and the respondent’s “former employee”.

25In order to comply with this Interim Decision it will be necessary to redact the applicant’s witness statement and one document tendered by the respondent in relation to the customer department. The parties agreed that the Tribunal will redact the applicant’s witness statement and that the respondent will provide the redacted version of its document to the applicant and the Tribunal in advance of the resumption of the hearing.

26In summary, the least intrusive means of safeguarding the respondent’s right to fully defend the Application and to uphold the integrity of the SIA is to anonymize the information noted above and to also require the parties and any other persons to adhere to the anonymization of that information. Finally, I also note that because the Tribunal is subject to provincial freedom of information legislation, its records are not generally available to the public, except through the process set out under that legislation. This provides additional protections with respect to non-disclosure.

order

27The respondent’s request for a publication ban is granted in part. The parties to this Application and any other persons will not:

1. Identify the Government of Canada department by name, but rather refer to it as “the customer department”;

2. Identify the respondent’s current employee by name, but rather refer to him as “the site supervisor”; and

3. Identify the respondent’s former employee by name, but rather refer to his as “the former employee”.

28To conform with this Order the applicant’s witness statement will be redacted by the Tribunal and provided to the parties at the same time this Interim Decision is issued. The respondent will redact its document relating to the customer department and provide it to the applicant and the Tribunal in advance of the resumption of the hearing.