HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Nancy Ferguson
Applicant
-and-
College of Physicians and Surgeons of Ontario
Respondent
INTERIM DECISION
Adjudicator: Paul Aterman
Indexed as: Ferguson v. College of Physicians and Surgeons of Ontario
WRITTEN SUBMISSIONS
Nancy Ferguson, Applicant
Self-represented
College of Physicians and Surgeons of Ontario, Respondent
Brett Christen, Counsel
Introduction
1This Interim Decision explains why the applicant’s request to anonymise certain information in this Application is being denied. The Application alleges discrimination with respect to employment because of disability, sex and family status contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Reprisal is also alleged.
background
2The Tribunal released an Interim Decision in this Application (2014 HRTO 1365) on September 15, 2014. That Interim Decision contains the following paragraphs that set out the background to this case:
The applicant worked for the respondent College from September of 2010 until her employment was terminated on November 22, 2012. Her job was to supervise the work of a team of Decision Administrators, who in turn would draft decisions that report the conclusions arising from investigations into complaints about members of the College.
The applicant alleges that during the course of her employment the respondent discriminated against her in the following ways:
By denying her opportunities for advancement and promotion because of her sex and family status;
By scheduling her hours of work in a manner that was discriminatory based on sex and family status;
By harassing her and subjecting her to a poisoned work environment because of her sex; and
By terminating her employment without advising her of any concerns it had about the quality of work. The applicant alleges that her sex was a factor in this decision, in that the College would not have treated a male employee this way. She also alleges that she has a disability and, although she never informed the College of this fact, she would have done so if she had been told there were concerns about her performance. This, she claims, is also an instance of discrimination based on disability.
The allegation of reprisal is that she raised a concern with the College that the College had failed to inform the police that it had evidence of criminal conduct by a member of the College. The victims of the alleged conduct were female patients. The applicant asserts that the College’s failure to report this was an act of discrimination against the women of Ontario. She claims that the termination of her employment was an act of reprisal against her for having raised this issue with the College.
3The applicant maintains that she was unaware that this Interim Decision would be made public.
4She has now made a request that “…any identifying information including the Applicant’s name, position and responsibilities be removed from the interim decision dated September 15, 2014 … and from any interim decision arising from this request for order.”
5She argues for anonymization on the following grounds:
That disclosure of the fact of her disability will adversely affect her future employment prospects;
That an element of her Application amounts to “whistleblowing” of wrongdoing on the part of her employer, and if she is identified then this will adversely affect her future employment prospects;
That she had no earlier opportunity to request anonymization because she did not know the Tribunal would release an Interim Decision, nor that it would contain her personal information;
That the Tribunal should protect personal information wherever possible; and
That the Tribunal’s Practice Direction on the Anonymization of HRTO Decisions was not in effect when she filed her Application, so it should not apply in her case.
6In opposing the request the respondent maintains that the public interest in open justice trumps all of the concerns raised by the applicant. It argues that none of the information she seeks to protect is sufficiently sensitive to justify withholding it from the public domain.
analysis
7As is indicated in the Tribunal’s Practice Direction on Anonymization, the default position of the Tribunal is not to anonymize information. The exceptions are in Applications involving children, and in rare instances where there is a reason to depart from the principle of open justice in order to protect the security of individuals or to shield highly sensitive personal information from public view.
8The rationale for favouring disclosure as the point of departure is set out in clear terms in C.M. v. York Region District School Board, 2009 HRTO 735 at para. 20:
An open justice system is a fundamental principle of a free and democratic society, so that the actions of those responsible for interpreting and enforcing the law may be subject to public scrutiny. Moreover, the principles enshrined in the Code are quasi-constitutional rights which are recognized as particularly significant in Canadian society. It is important for there to be public scrutiny when respondents found to have violated these rights and also when accusations of discrimination are made by applicants but not upheld. I agree with the respondents that it is a serious matter to be accused of breaching the Code, which may also cause stress and stigma. Without good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity, assured that they will not be identified if they are found not credible, their allegations are rejected or they are held to have violated the Code. Effective public scrutiny of this human rights system depends, in part, upon knowing how the Tribunal addresses the particularly parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems.
9With this in mind, it is appropriate to address each of the applicant’s arguments and explain why they are being rejected.
Impact of disclosure of disability on the applicant’s employment prospects
10The applicant states that her disability is an invisible one and that she fears that reference to it in the Tribunal’s decisions will enable future employers to identify that she is disabled. This puts her at risk of being fired from her current employment and diminishes her future employment prospects. Without addressing whether there is any basis for the applicant’s assumption about the impact of disclosure on her job prospects, she is in the same position as all applicants before the Tribunal who allege discrimination in employment on the basis of disability. The Tribunal receives a great number of such Applications every year. There is nothing extraordinary about the applicant’s circumstances that would justify treating her request as falling into the category of exceptional circumstances.
11In refusing a similar request the Tribunal in Hendy v. Nartech Metal Products Ltd., 2012 HRTO 810 stated at para. 14:
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.
12This reasoning applies here.
13Moreover, the extent of the reference to her disability is in the excerpt cited above at paragraph 2, which simply states that she has a disability. There is nothing unusually sensitive about stating that fact.
Whistleblowing as a reason for anonymization
14The applicant states that she objected to the respondent’s failure to contact police in relation to acts done by a member of the College that she says were criminal. She says that this triggered a reprisal in the form of the termination of her employment. Because she works in the specialised area of the regulation of self-governing professions in Ontario, future employers in that field will know who she is and refuse to hire her.
15The respondent’s position is that it complied with its statutory obligations in investigating the College member in question and that it adhered to its normal practice of not disclosing its investigations to police except in limited circumstances. It says the applicant is not a whistleblower, and it also maintains that any risk of adverse impacts on the applicant’s future job prospects is the same risk that other applicants bear when they raise concerns before the Tribunal that an employer has violated the Code.
16In my view the positions of the parties here reflect a dispute between an employer and employee about the Code of the kind that arises commonly before the Tribunal. It is not uncommon, and quite understandable, for an employee who works in a specialised area to worry about the impact that bringing an Application against their employer will have on their reputation in their field of work. There is nothing that the applicant has raised in relation to this argument that justifies a departure from the normal practice of allowing the disclosure of personal information.
The applicant had no prior notice that the Tribunal would release the Interim Decision
17The applicant appears to argue that she should have been told in advance that the Tribunal was going to release its Interim Decision, and thus she was denied an opportunity to request anonymization earlier.
18There is no merit to this argument. When the respondent filed its Response it requested dismissal of the Application on the ground of delay. The applicant made submissions to the contrary in her Reply. While I appreciate that she may not be familiar with the Tribunal’s process, the Tribunal was under no obligation to advise the parties in advance that it was going to adjudicate that issue.
19In any event she now has set forth her arguments in favour of anonymization, and the merits of those arguments are dealt with above. In that sense she has not lost any opportunity to be heard on this issue.
The Tribunal should protect personal information wherever possible
20The substance of the applicant’s arguments on this point are that the Tribunal has got the balance between open justice and the protection of personal information wrong. I understand that the applicant may disagree with the prevailing approach of the Tribunal, but this is not a basis for granting her request.
The Practice Direction on Anonymization should not apply in this case
21The applicant argues that the Practice Direction was not issued until April 1, 2014. Her Application was filed on November 22, 2013. She maintains that because she filed her Application before the Practice Direction was implemented, it should not be applied in this case and her request should be granted.
22Practice Directions are not law. The applicable legal principles are articulated in the Tribunal’s decisions, many of which (such as C.M., cited above) predate the filing of this Application. These would have applied to the applicant’s case whether or not the Practice Direction was in force at the time she filed her Application, and these are the principles that I have applied here. Accordingly, there is no merit to this argument.
order
23The applicant’s request for anonymization is denied.
Dated at Toronto, this 25th day of November, 2014.
“Signed by”
Paul Aterman
Vice-chair