Sarah Kettle v. Northern Initiative for Social Action, Shana Calixte and Mike Clarke, 2014 HRTO 136

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sarah Kettle

Applicant

-and-

Northern Initiative for Social Action, Shana Calixte and Mike Clarke

Respondents

INTERIM DECISION

Adjudicator: David Muir

Date: January 30, 2014

Citation: 2014 HRTO 136

Indexed as: Kettle v. Northern Initiative for Social Action

APPEARANCES

Sarah Kettle, Applicant

Bay Ryley, Counsel

Northern Initiative for Social Action, Shana Calixte and Mike Clarke, Respondents

Geoff Jeoffrey, Counsel

Introduction

1This is 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 disability. This case is scheduled for hearing beginning on February 10, 11 and 12, 2014.

2The applicant has filed a Request for Order During Proceeding ("Request") seeking a publication ban restricting the use of the applicant's name by any third party/media that may choose to attend the hearing and that the name of the applicant be identified only her first and last initials in the text of the decision provided by the Tribunal to the public.

3The respondent does not object to the Request but requests that any of its witnesses be covered by any Order made in response to this Request.

4The Request is denied.

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

6The applicant argues that there is still a significant stigma that attaches to mental illness and the applicant believes that if her mental health and other medical information were to become public this could significantly affect her reputation. The applicant asserts that evidence presented at the hearing will include detailed medical records that are at the heart of the Application. The applicant argues that the public interest in open justice does not outweigh the applicant's need to keep the details of her personal medical information private. The applicant asserts that the Tribunal will hear evidence of the emotional impact the Applicant has allegedly experienced and submits that release of her personal medical information will result in further emotional harm to the Applicant. The applicant argues that the nature of her disabilities, and the nature of the harm she has already experienced, constitute the "exceptional circumstances" contemplated by the Statutory Powers Procedure Act, R.S.O. 1990, C. S. 22 ("SPPA") that warrant overriding the public's interest in open justice.

7As regards the request that the Decision of the Tribunal be anonymized by the use of the applicant's initials, the applicant relies on the Tribunal's Decision in S. and C. v. Toronto Police Services Board, 2008 HRTO 437. The applicant argues that in this Decision the Tribunal agreed to anonymize the identity of the complainants because the issues in the case related to the alleged discriminatory disclosure of personal information. In the Tribunal's view this was an exceptional circumstance, justifying such an order in that case. The applicant also relied on the Decision S.D. v Grand River Hospital, 2010 HRTO 1653, which concluded at paragraphs 5 and 6:

"At the outset of the hearing, both parties requested that the applicant's patient chart be admitted as evidence, and the applicant, with the consent of the respondent, requested that the Tribunal order that the chart be sealed. I granted both requests. Furthermore, because this Decision discloses entries from the chart, I have decided, on my own motion, to anonymize the applicant's name in order to protect the integrity of the sealing order.

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."

8In Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230 ("Visic"), the Tribunal 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 anonymization 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.

9In my view the applicant's Request does not establish any exceptional circumstances of sensitivity or privacy requiring anonymization. I note that the burden rests on the party seeking the publication ban to establish with evidence that such an Order is necessary because of the particular circumstances of the case. A general claim that there is still a stigma associated with mental illness is insufficient. Human rights proceedings are often difficult for all involved, most particularly applicants. The applicant has not established what is unique or exceptional about this case which requires the extraordinary remedy of a publication ban. In A.G. (Nova Scotia) v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 SCR 175, the Supreme Court of Canada addressed this general issue at p. 185:

... Many times it has been urged that the 'privacy' of litigants requires that the public be excluded from court proceedings. It is now well established, however, that covertness is the exception and openness the rule. Public confidence in the integrity of the court system and understanding of the administration of justice are thereby fostered. As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings. The following comments of Laurence J. in R. v. Wright, 8 T.R. 293, are apposite and were cited with approval by Duff J. in Gazette Printing Co. v. Shallow, (1909), 1909 CanLII 46 (SCC), 41 S.C.R. 339 at p. 359:

Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings.

10It is also routine that some evidence of the emotional consequences of alleged discrimination is heard, indeed the Code calls for such evidence when determining the appropriate remedy when it speaks of damages for injury to dignity, feelings and self-respect in section 45.2 (1). The applicant has not indicated what this evidence might be and accordingly there is no basis to conclude that exceptional circumstances exist in this case.

11I also observe that the extent to which this case will involve the consideration of personal medical information is somewhat unclear. I note that the applicant does not disclose the nature of her disability in her pleadings. Contrary to the applicant's assertion that at the heart of this case is detailed personal medical evidence about the applicant, this Application is notable by the absence of medical information of any kind. Beyond general assertions of emotional harm allegedly caused by the actions of the respondents briefly referred to in the Application, there is little in the way of personal information disclosed in the material and therefore little will be canvassed at the hearing. There are no medical witnesses being called and no medical evidence is being tendered by either party. I acknowledge the respondents' position that they do not object to the instant Request but ask that the identity of the personal respondents and their witnesses be anonymized as well. In weighing the respondents' position with respect to the instant Request, I have to take into consideration the comments of the Supreme Court of Canada in R. v. Mentuck, 2001 SCC 76, [2001] 3 SCR 442, at paras. 38-39:

In some cases, however, most notably when there is no party or intervener present to argue the interests of the press and the public to free expression, the trial judge must take account of these interests without the benefit of argument. The consideration of unrepresented interests must not be taken lightly, especially where Charter-protected rights such as freedom of expression are at stake. It is just as true in the case of common law as it is of statutory discretion that, as La Forest J. noted, "[t]he burden of displacing the general rule of openness lies on the party making the application": New Brunswick, supra, at para. 71; Dagenais, supra, at p. 875. Likewise, to again quote La Forest J. (at paras. 72-73):

There must be a sufficient evidentiary basis from which the trial judge may assess the application and upon which he or she may exercise his or her discretion judicially. . . .

A sufficient evidentiary basis permits a reviewing court to determine whether the evidence is capable of supporting the decision.

In cases where the right of the public to free expression is at stake, however, and no party comes forward to press for that right, the judge must consider not only the evidence before him, but also the demands of that fundamental right. The absence of evidence opposed to the granting of a ban, that is, should not be taken as mitigating the importance of the right to free expression in applying the test.

It is precisely because the presumption that courts should be open and reporting of their proceedings should be uncensored is so strong and so highly valued in our society that the judge must have a convincing evidentiary basis for issuing a ban. ...

12For these reasons the Request is denied.

13I also acknowledge the respondents' Request that the individual respondents be removed from the Application. The applicant has not yet responded to this latter Request. Given these circumstances, the respondents' Requests may be addressed in a telephone conference call in the week of February 3 to 7, 2014, if the parties can make themselves available on short notice.

14I am not seized of this case.