A.D. v. 2169287 Ontario Inc., 2014 HRTO 297

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.D.

Applicant

-and-

2169287 Ontario Inc. and Tharwat Salem

Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin

Date: March 7, 2014

Citation: 2014 HRTO 297

Indexed as: A.D. v. 2169287 Ontario Inc.

WRITTEN SUBMISSIONS

A.D., Applicant

Grace Vaccarelli, Counsel

2169287 Ontario Inc. and Tharwat Salem, Respondents

No submissions

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on March 15, 2013. The Application is scheduled for hearing on April 8 and 9, 2014. This Interim Decision addresses a Request for Order During Proceeding to amend the Application and anonymize the proceeding and issues directions to the respondents regarding their non-compliance with Rules 16 and 17 of the HRTO’s Rules of Procedure.

Request to Amend and Anonymize

2The Request to amend the Application and anonymize the proceeding was filed on October 9, 2013. The Request is accompanied by a Statement of Delivery reflecting that a copy was delivered to the counsel for the respondents. The respondents did not file a Response. Thus, the Request is uncontested.

Request to Anonymize

3The Request to Anonymize is based on the nature of the allegations in the Application and the status of the applicant’s professional career. The applicant alleges that she was sexually assaulted by a manager in the respondent’s restaurant in what was the applicant’s first full-time post-graduation position. Particulars of the alleged assault are provided in the Application. The applicant submits that the nature and details of the sexual assault, the added stigma that flows from the gravity of the event and the minimal prejudice the respondents would encounter constitutes exceptional circumstances justifying the minor interference with the openness of proceedings on the basis of the applicant’s dignity and privacy rights. The applicant also states that she is attempting to protect her privacy as she begins her professional career and she does not want this experience to taint her reputation as an employee prior to having the opportunity to establish herself.

4Rule 3.11 of the Rules of Procedure states:

The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.

5The relevant principles in considering requests for anonymization and publication bans are set out in C.M v. York Region District School Board, 2009 HRTO 735. In C.M. the Tribunal emphasized the importance of an open justice system and stated that without good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity.

6In some cases, however, where there are allegations of sexual assault and sexual harassment, the Tribunal has concluded that there are good reasons for anonymizing a proceeding. For example, in CAW-Canada v. Presteve Foods, 2010 HRTO 796, the Tribunal concluded that anonymization was justified given the stigma associated with the allegations. The Tribunal concluded at para. 5:

Balancing the public interest in freedom of expression and open justice against the significant stigma to the claimants raised by the facts of this case that include alleged sexual assaults, I find that an order of the type requested is appropriate and justified.

7I reach a similar conclusion in this case. While recognizing the public interest in open justice, I am persuaded that when balanced against the stigma to the applicant given the alleged sexual assault, anonymization is justified. In reaching this conclusion, I have considered that the order will be a minimal intrusion on the public nature of the proceeding and the respondent has not filed any submissions objecting to the order.

8In the result, the applicant’s name (and those of her immediate family) will be identified by their first and last initials in the Tribunal’s decisions provided to the parties and to the Canadian Legal Information Institute and other public reporters of Tribunal decisions.

Request to Amend

9The applicant seeks to amend the Application to include the allegation of a failure to investigate and an amendment to the remedies sought.

10The original Application was filed by the applicant without the benefit of representation. The Application did not mention an alleged failure to investigate. As for remedy, the applicant sought monetary compensation in the amount of $22,000 (inclusive of six months’ salary and $10,000.00 in general damages) and an apology.

11The applicant now has representation. In the Request to Amend the applicant seeks the inclusion of the particulars of the allegation of a failure to investigate as set out in paragraph 2 of Schedule B of the Request. In addition, the applicant seeks to amend the remedies sought to include the following:

• Seven months of lost salary in respect of the period January 15, 2013 to August 15, 2013, amounting to $14,000.00;
• $35,000.00 in general damages to reflect the injury to her dignity, feelings and self-respect;
• A letter of reference; and
• The respondent employer develop and implement, at its expense, a Policy on the Human Rights Code that includes a complaint mechanism consistent with the Code and that all management and staff be trained on that policy and all new staff be provided with that policy.

12I note that after listing the amendment sought for general damages, the applicant referenced $45,000.00 without indicating what this figure represents. If this figure was an amendment of remedy being sought, the applicant shall by March 14, 2014, confirm and clarify the same in writing to the Tribunal with a copy to the respondents.

13Having regard to the circumstances and the material filed, I find it appropriate to permit the applicant to amend the Application to include the additional particulars set out in paragraph 2 of Schedule B of the Request; to add the allegation of failure to investigate; and to amend the remedies sought to include the remedies itemized in paragraph 11 above.

14With respect to the allegation of a failure to investigate, the allegation arises from one additional interaction between the applicant and the owner and would otherwise be a timely allegation given that it was filed less than a year after the alleged event. I also do not find that this allegation will add in any significant way to the hearing time.

15With respect to the amendment to the remedy sought, as stated in Flanagan v. Diversified Global Asset Management Corporation, 2011 HRTO 455 at para. 5, the granting of a request to amend is not a reflection on whether the requested remedy is likely to be granted by the Tribunal; only that the applicant is entitled to seek such amended remedy at the hearing.

16By March 21, 2014, the respondents may file an amended Response incorporating their response to the additional particulars, allegation and amended remedy.

Other Directions

17The respondents are alerted to the fact that they have failed to comply with Rules 16 and 17 of the HRTO’s Rules of Procedure regarding pre-hearing disclosure of documents and witnesses.

18As the Tribunal notified the parties in the October 3, 2013 Notice of Hearing in this matter, under Rules 16 and 17 of the HRTO’s Rules of Procedure, the parties were obliged to provide the following things to one another and to the Tribunal by no later than February 24, 2014 (subsequently extended to March 3, 2014):

a. a list of the documents they intend to rely on b. copies of the documents; and c. witness statements setting out the intended evidence of each witness (including for the applicant and individual respondent).

19The deadline for providing this disclosure is now past and the respondents have not filed their document or witness statements.

20By no later than March 14, 2014, the respondents must deliver to the applicant and file with the Tribunal the documents they intend to rely upon at the hearing, a list of their witnesses and a brief statement describing what their witnesses will say when they testify.

21The personal respondent, Tharwat Salem, is reminded that he must submit a witness statement for himself, if he intends to testify at the hearing.

22If the respondents do not provide the above-noted materials by March 14, 2014, the Tribunal may take any or all of the steps set out in Rule 5 of the Tribunal’s Rules of Procedure, including not permitting the respondents to call any witnesses or present any documentary evidence at the hearing.

Summary of Orders and Directions

23The Tribunal orders:

• The applicant’s name (and her immediate family) will be identified by their first and last initials in the Tribunal’s decisions provided to the parties and to the Canadian Legal Information Institute and other public reporters of Tribunal decisions;
• The request to amend the Application to include the additional particulars set out in paragraph 2 of Schedule B of the applicant’s Request; to add the allegation of failure to investigate; and to amend the remedies sought to include the remedies itemized in paragraph 11 above is granted;
• By March 21, 2014, the respondents may file an amended Response incorporating their response to the additional particulars, allegation and remedy; and
• By no later than March 14, 2014, the respondents must deliver to the applicant and file with the Tribunal the documents they intend to rely upon at the hearing, a list of their witnesses and a brief statement describing what their witnesses will say when they testify, including for Tharwat Salem if he intends to testify.