C.C. v. [….] Restaurant, 2014 HRTO 1821

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.C.

Applicant

-and-

J.L. o/a [….] Restaurant, C.L. and J.L.

Respondents

A N D B E T W E E N:

J.C.

Applicant

-and-

J.L. o/a [….] Restaurant, C. L. and J. L.

Respondents

RECONSIDERATION DECISION

Adjudicator: Alison Renton

Date: December 23, 2014

Citation: 2014 HRTO 1821

Indexed as: C.C. v. [….] Restaurant

WRITTEN SUBMISSIONS

C.C. and J.C., Applicants

Mindy Noble, Counsel

1In Decision, 2014 HRTO 1625, dated November 4, 2014 (“the Decision”), the Tribunal upheld the Applications of both applicants and awarded a number of remedies against the respondents for the violations contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”).

2C.C. is the mother of J.C. Both Applications pertain to C.C.’s use of a service animal at the restaurant, J.L. o/a [….] Restaurant (“the restaurant”), where J.C. worked. C.L. and J.L. are owners of the restaurant. C.C. was denied service at the restaurant by Ms. L. on September 26, 2012 because she entered with a service animal. J.C. was threatened by Ms. L. subsequent to September 26, 2012, because of her association with her mother, such that she had to quit her employment.

3On November 19, 2014, and after the Decision was issued, for the first time, counsel for the applicants filed submissions requesting that the Tribunal anonymize (via the use of initials) any reference to the applicants’ names in the Decision and two Interim Decisions that had been issued by the Tribunal. The applicants submit that they resided in a small town at the time of the incidents that are at issue in the Application, C.C. continues to enter the small town and continues to experience difficulties receiving services because of her service animal, and the issues which were the subject of their Applications are still being discussed within that community. Furthermore, there is sensitive information about their mental health, including C.C.’s plans to commit suicide, in the Decision.

analysis

4Once the Decision was issued, the Tribunal has no jurisdiction to consider submissions filed by a party because of the legal doctrine of functus officio. The doctrine of functus officio and the rationale behind it were described by the Supreme Court of Canada in Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848 at p. 861 (“Chandler”) as:

Apart from the English practice which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra. [Emphasis added.]

5As noted in the above passage from Chandler, the exception to the rule that a tribunal is functus after reaching a final decision is where a statute authorizes a tribunal to revisit its decisions. See also Jacobs Catalytic Ltd. v. International Brotherhood of Electrical Workers, Local 353, 2009 ONCA 749 at para. 33 and Thompson v. Selective Personnel Ltd., 2014 HRTO 121 at paras. 3 to 4.

6Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with the Tribunal’s Rules of Procedure (“the Rules”).

45.7(1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

7The Tribunal has established the test for reconsideration in Rule 26.5 of its Rules as:

26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

8Despite the fact that the applicants have not filed a Form 20, Request for Reconsideration, which is required under Rule 26 of the Tribunal’s Rules, sent a copy to the respondents, or submitted, in their written submissions, that the Tribunal reconsider the Decision, based upon section 45.7(2) of the Code and the sensitive mental health information contained in the Decision, the Tribunal will treat this as a request for reconsideration. The respondents failed to participate in these proceedings, as set out in paras. 2 to 4 of the Decision, and the Tribunal’s Interim Decision, 2013 HRTO 1730, which deemed the respondents to have accepted all the allegations set out in the Applications, waived their rights to notice or participation in these proceedings and stated that the Applications would proceed without further notice to the respondents.. The Tribunal’s determination is based only upon the applicants’ submissions.

9One of the Tribunal’s mandates, as set out on its website, is to be transparent. The Tribunal’s Rules provide that the Tribunal’s hearings are open to the public and that its decisions are available to the public. See Rules 3.10 and 3.12 and section 9(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, as amended. The Tribunal has also acknowledged that an applicant, or a witness, is likely going to disclose or testify about information that is personal. See Marakkaparambil v. Ontario (Health and Long-Term Care), 2007 HRTO 24, at para. 50.

10In C.M. v. York Region District School Board, 2009 HRTO 735, at para. 20, the Tribunal explained the concepts of openness and transparency as follows:

…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 [are] found to have violated these rights and also when accusations of discrimination are made by applicants but not upheld. … 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 systems depends, in part, upon knowing how the Tribunal addresses the particularly [sic] parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems.

11At the same time, the Tribunal has also recognized that there may be circumstances in which it is appropriate to protect the identity of individuals who are engaged in the Tribunal’s process where there are particular issues of vulnerability or potential harm. Rule 3.11.1 provides that the Tribunal will use initials in its decisions to identify children under age 18, the next friend of children under 18, and other participants in the proceeding if necessary to protect the identity of children. Furthermore, Rule 3.11 provides that the Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.

12The privacy interests of these individuals have been recognized in the Tribunal’s Practice Direction On Anonymization (“the Practice Direction”). It states:

The HRTO has granted a request for anonymization where there were specific threats to personal safety, whether there were parallel criminal proceedings arising from the same facts and relating to an alleged sexual assault, and where there was highly sensitive medical information or particularly sensitive information relating to an acute mental health crisis.

13See, for example, C.K. v. H.S., 2014 HRTO 1652 at para. 4 and XY v. Housing Connections, 2011 HRTO 1377 at para. 29.

14I am concerned that the applicants did not request anonymization in advance of the hearing, during the hearing, in their post-hearing submissions dated April 10 and May 5, 2014 (which are referenced in para. 5 of the Decision), or before the Decision was issued. The evidence to which they point and the issues to which they refer in their submissions in support of their request for anonymization was filed before the hearing, in either a witness statement(s) and/or in documentation, including medical documentation and hospital documentation. It was clear that when Interim Decision, 2013 HRTO 1730, was issued by the Tribunal, which deemed the respondents to have accepted all the allegations set out in the Applications, waived their rights to notice or participation in these proceedings and stated that the Applications would proceed without further notice to the respondents, that the hearing would proceed in the respondents’ absence. The applicants’ submissions do not address why they waited until after the Decision was issued to request that their identities be anonymized.

15I do not accept that residing in a small town, or previously residing in a small town, is an exceptional reason in these Applications to anonymize the identity of the applicants even if, as the applicants submit, J.C. and the respondents have moved away from that community. As the Supreme Court of Canada noted in A.G. (Nova Scotia) v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175 at p. 185, “As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings”. This principle has been equally applied to legal proceedings before administrative tribunals.

16The fact that C.C. continues to live in the community is not, by itself, a sufficient reason upon which to anonymize her identity and the identity of her daughter. In fact, this request now appears to be inconsistent with the evidence that C.C. made a number of municipal officials aware of the restaurant’s posted animal sign before she was denied service on September 26, 2012. Para. 20 of the Decision notes the evidence that was given about C.C. contacting public health by email, and copying the municipal officers from the respondents’ community, including the mayor, about what the restaurant was doing. C.C. testified that she did this to let them know what was happening in their community again because it is a small community, and to educate them as she had had another experience in a small grocery store of which the municipal councillors were aware. The email was entered as an exhibit.

17Furthermore, I do not accept it is a sufficient reason to anonymize these applicants because others knew and continue to know about their experiences with the respondents, particularly when, as noted above, C.C. emailed a number of municipal officials about the animal sign.

18However, now that the anonymization request has been made I do find it appropriate to anonymize the identity of C.C., pursuant to Rule 26.5(d), because of the sensitive medical evidence pertaining to her. This is specifically the evidence about her intention to commit suicide and her involuntary admission into the hospital in December 2012 that was tendered at the hearing through C.C.’s testimony as well as the testimony of the other witnesses, and the documents that were entered as exhibits. The Tribunal has recognized that anonymization may be appropriate in situations where sensitive medical information or sensitive information pertaining to mental health issues is disclosed. See, for example, S.D. v. Grand River Hospital, 2010 HRTO 1653 at para. 6; and XY v. Ontario (Government and Consumer Services), 2010 HRTO 1906 at para. 11.

19I find that evidence about an individual’s intention to commit suicide and subsequent involuntary admission into a hospital are examples of sensitive information that favour anonymization. The existence of this sensitive information coupled with C.C.’s vulnerability about disclosing this information and her continuing residence in this small community, are examples, in the circumstances of this case, of “other factors” within the meaning of Rule 26.5(d) which support reconsideration of the Decision. I note that granting anonymization does not change the findings in the Decision or the remedies that were awarded, such that the Decision is still final.

20I also find it appropriate to anonymize the applicant J.C. She is the daughter of C.C., and her Application was upheld based upon family status and association with another (her mother). It would be meaningless to grant anonymity to C.C. if J.C. were identified.

21While the applicants have not requested it, I also find that it is appropriate to anonymize the witnesses who testified, by initials, apart from Dr. Shapiro. The other witnesses, D.C. and R.C., were identified in para. 9 of the Decision, based upon their familial relationship with C.C. and J.C. Dr. Shapiro, by himself, would not be recognizable as a friend or former employer of C.C.

22Furthermore, I find it appropriate to anonymize the identity of the respondents and the identity and type of C.C.’s service animal, although the applicants also did not request these. Given the evidence that C.C. was the only one in the area who used a service animal, the small community in which this took place, and the limited dining options that were available to C.C., again it would be meaningless to grant anonymity to C.C. if the respondents were identified.

23Accordingly, the identities of the applicants C.C. and J.C., the witnesses D.C. and R.C., and the respondents, will be referred only by initials in the Decision and any other Interim Decisions that have been issued by the Tribunal. The Decision will also be altered to reflect C.C.’s service animal being referred to as the “service animal”, “C.C.’s service animal”, or “her service dog” and any reference to the type of service animal will also be anonymized in the Decision and any other Interim Decisions that have been issued by the Tribunal.