HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
H.S. Applicant
-and-
The Private Academy Respondent
A N D B E T W E E N:
S.S. Applicant
-and-
The Private Academy Respondent
A N D B E T W E E N:
N.S. by his litigation guardian, S.S. Applicant
-and-
The Private Academy Respondent
INTERIM DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: H.S. v. The Private Academy
WRITTEN SUBMISSIONS
H.S., S.S. and N.S. by his litigation guardian, S.S., Applicants
Self-represented
The Private Academy, Respondent
Adrian Miedema, Counsel
Introduction
1This Interim Decision addresses the applicants’ requests that these Applications be anonymized, as well as the issue of whether they should be consolidated.
Consolidation
Analysis and Decision
2Rule 1.7(d) of the Tribunal’s Rules of Procedure states that, in order for the fair, just and expeditious resolution of any matter before it, the Tribunal may consolidate or hear applications together.
3At paragraph 14 of the decision in Persaud v. Toronto District School Board, 2008 HRTO 25, the Tribunal adopted the decision of the Canadian Human Rights Tribunal in Lattey v. Canadian Pacific Railway, 2002 CanLII 45928 (CHRT), which set out the factors that should be considered in deciding whether to consolidate or hear proceedings together:
The public interest in avoiding a multiplicity of proceedings, including considerations of expense, delay, the convenience of the witnesses, reducing the need for the repetition of evidence, and the risk of inconsistent results;
The potential prejudice to the respondents that could result from a single hearing, including the lengthening of the hearing for each respondent as issues unique to the other respondent are dealt with, and the potential for confusion that may result from the introduction of evidence that may not relate to the allegations specifically involving one respondent or the other; and
Whether there are common issues of fact or law.
4Except for the names of the applicants, these are almost identical Applications, involving the same allegations and the same respondent. There is a compelling public interest in avoiding a multiplicity of proceedings and, accordingly, the Tribunal orders these Applications consolidated.
Anonymization
Parties’ Submissions
5The applicant, N.S., is a minor, and the other two applicants, H.S. and S.S., are the child’s parents. The allegations in the Applications are that the applicant, N.S., was denied admission to the respondent’s preschool program because of the sexual orientation of H.S. and S.S.
6S.S. and H.S., in support of their requests for anonymization, note the nature of the applications could generate heated debate in their small rural community and create a difficult and stressful situation for N.S. The applicants assert two of the teachers at the respondent preschool attend an evangelical church a few kilometres from the applicants' farm.
7The applicants further argue that for the anonymization to be effective their names also must be anonymized because N.S. may be linked to them.
8The respondent opposes the applicants’ requests and submits the principles of openness and transparency of the human rights process outweigh the applicants’ personal concerns. It further argues the applicants have provided no evidence of the potential for heated debate or backlash, but have relied on stereotypes and generalizations about residents of rural communities. The respondent also argues that civil, respectful debate is to be encouraged. It submits the applicants cannot be granted anonymization simply because they believe they may be unpopular for proceeding with this litigation.
9Finally, the respondent argues the Tribunal has no blanket rule of confidentiality for minors, citing Rocca v. PDSB, 2009 HRTO 437 (“Rocca”) where anonymization was denied.
10The respondent also relies on Mancebo-Munoz v. NCO Financial Services Inc., 2013 HRTO 974 (“Mancebo-Munoz”) in which the Tribunal held that anonymity should be limited to exceptional circumstances.
Analysis and Decision
11Rule 3.11.1 of the Tribunal’s Rules of Procedure (“the Rules”) states:
Unless otherwise ordered, the Tribunal will use initials in its decisions to identify children under age 18 and the next friend of children under 18. It may use initials to identify other participants in the proceeding if necessary to protect the identity of children.
12In C.M. v. York Region District School Board, 2009 HRTO 735 (“C.M.”), at paras. 20-21, the Tribunal discussed open justice and the recognition of the best interests of children as follows:
Open Justice
I agree with the respondents that this Request raises important issues about the openness of the Tribunal process. 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.
The Best Interests of Children
In this case, the applicant is a child. This is significant for two reasons. First, attention to children’s best interests and recognition of their vulnerability are, like openness, fundamental values in our legal system. As noted in Baker v. Canada (Minister Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817 at para. 67, “Children’s rights, and attention to their interests, are central humanitarian and compassionate values in Canadian society”. As the Supreme Court stated in Baker at para. 71, numerous international instruments have “placed special importance on protections for children and childhood”. Second, unlike adult litigants, a child does not make decisions for herself or himself about the Application. The decisions to commence it, what evidence to call and arguments to make, and whether to settle, to name just a few, are usually made on his or her behalf by a parent or guardian.
13In C.M., the Tribunal found that the considerations of the potential stigma to the minor applicant, the fact that the minor applicant has no decision-making power in the proceedings and the special importance of protecting children or minors in the legal system justified the anonymization of the minor applicant’s name in the Tribunal’s decisions. In my view, this is also true in the present Application, particularly in light of Rule 3.11.1. In my view, the protection of the child’s identity based on the considerations set out in C.M. outweigh the important principle of open justice. See: C.M. at para. 26. I say this without relying on stereotypes of people in rural communities, but relying on Rule 3.11.1 and the reasoning in C.M.
14The Application parallels some of the facts present in C.M. The case of Mancebo-Munoz is distinguishable in that it did not involve a child. The Application also parallels C.M. more closely than Rocca where the need for openness, in the context of an allegation impugning the actions of the parents, outweighed the justification to keep the parents’ and their child’s identities confidential. I also note that, while each case must be assessed individually, the Tribunal has generally followed the approach set out in C.M. over that in the anomalous decision of Rocca, when the issue of identifying minors has arisen.
15On the basis of the material before me, the Tribunal grants the applicants’ Requests for anonymization. The Tribunal’s communications to the parties from this point forward, and any decisions in these cases, will use initials in place of the applicants’ and next friends’ names.
Order
16These Applications are consolidated.
17The applicants will be referred to by their initials in the style of proceedings and in Tribunal decisions.
18The respondent will be referred to by the name “The Private Academy” in the style of proceedings and in Tribunal decisions in order to assist in protecting the identity of the minor.
Dated at Toronto, this 5th day of December, 2014.
“signed by”
Dawn J. Kershaw
Vice-chair```