Gonder v. Peterborough Regional Health Centre, 2014 HRTO 565

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jackie Gonder

Applicant

-and-

Peterborough Regional Health Centre

Respondent

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: April 23, 2014

Citation: 2014 HRTO 565

Indexed as: Gonder v. Peterborough Regional Health Centre

WRITTEN SUBMISSIONS

Jackie Gonder, Applicant

Dan Gonder, Representative

Peterborough Regional Health Centre and Brad Tucker, Respondents

Carolyn Dunlop, Counsel

Introduction

1The purpose of this Interim Decision is to address the applicant’s request for anonymization and the respondents’ request that the personal respondent be removed from this Application. In this Decision, the Tribunal also sets a deadline for the applicant’s response to the respondents’ request that certain portions of the Application be struck as they relate to events that were covered by a previous Memorandum of Agreement signed by the parties.

Anonymization Request

2By Request for Order During Proceedings (“RFOP”) filed on March 28, 2014, the applicant requested the anonymization of her identity in this proceeding. The applicant submitted that she may suffer prejudice by being labelled as mentally ill due to the possible disclosure of evidence from her medical file in the proceedings. The applicant relied upon the Tribunal’s decision in J.M. v. St. Joseph’s Health Care, 2009 HRTO 1811, to support her request.

3It is a well-established principle that there is a public interest in transparent legal processes and that, in accordance with Rule 3.10 of the Tribunal’s Rules of Procedure, human rights hearings are intended to be open proceedings. The Tribunal’s jurisprudence has held that anonymity or publication bans should be limited to exceptional circumstances: Marakkaparambil v. Ontario (Health and Long-Term Care), 2007 HRTO 24; Lazarevic v. York University, 2010 HRTO 1601.

4The Tribunal has issued anonymization orders 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 harmful 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.

5Human rights applications often include personal information and sensitive medical evidence is often admitted at Tribunal hearings. Before it will grant a request to anonymize a proceeding, the Tribunal must be satisfied that the interest of safeguarding personal privacy in a particular case outweigh the public interest in a transparent human rights process. I decline to grant the applicant’s anonymization request at this stage of the proceeding. The facts of this case are distinguishable from J.M. v. St. Joseph’s Health Care, above. In that case, the respondent included with its Response copies of the applicant’s medical records covering a period of several years. It was clear from the Response, and the nature of the issues in the case, that the respondent would seek to rely upon the applicant’s medical records at the hearing.

6In my view, the applicant’s concerns are premature at this early stage. At this stage, I am not convinced that there is real and substantial risk to the applicant’s privacy interests in this case. The applicant’s chief allegation is that the respondents did not meet their duty to accommodate her disability by scheduling an assessment at a location other than the respondent’s hospital facility. In their Response, the respondents claimed, among other things, that they provided the applicant with the name of another service provider which could provide an off-site assessment of the applicant. In her Reply, the applicant denies that the respondents provided her with this information.

7Given the nature of the issues in this case, I am not convinced that the determination of whether the respondents violated the Code in this case will require the disclosure of the kind of sensitive medical information that the respondent sought to rely upon in J.M. v. St. Joseph’s Health Care. Also, in the event that some of the applicant’s medical information is determined to be relevant to the proceeding, other options may be available to the Tribunal to balance the applicant’s privacy interests with the public interest in open and transparent hearings.

8For these reasons, I am not satisfied that the applicant has established any exceptional conditions of sensitivity or privacy necessitating anonymity at this stage of the proceedings.

Removal of Personal Respondent

9In an RFOP dated February 28, 2014, the respondents requested that the Tribunal remove Brad Tucker as a personal respondent. In her Response to the RFOP, the applicant indicated that she did not oppose this request. In light of the applicant’s position on this issue, and applying the reasoning of this Tribunal in Persaud v. Toronto District School Board, 2008 HRTO 31, I grant the respondents’ request to remove Mr. Tucker as a personal respondent.

Respondents’ Request to Strike Portion of Application

10In their RFOP, the respondents also requested that the Tribunal strike certain paragraphs of the Application which referred to employment-related claims that were settled through a Memorandum of Agreement (“MoA”) signed by the parties on March 13, 2013. The respondents submit that the applicant’s inclusion in the Application of facts relating to claims which were settled in the MoA was improper as these facts are irrelevant and their inclusion is prejudicial to the respondent.

11In a Response dated March 25, 2014, the applicant took issue with the respondents’ attachment of a copy of the MoA to their RFOP. The applicant claims that the respondents’ actions breached the confidentiality clause in the MoA. The applicant has requested that the Tribunal rule on this objection before providing her full response to the respondents’ request to dismiss.

12I do not find that it was improper for the respondents to attach a copy of the MoA to their RFOP in this case. I note that the confidentiality clause in the MoA, as with most other confidentiality clauses, includes as an exception situations where disclosure is required by law. The Tribunal must frequently review settlement agreements to determine whether an application raises claims that have already been the subject of a full and final release. Therefore, I do not accept the applicant’s claim that the respondents acted improperly in attaching a copy of the MoA to their request in this case.

Orders/Directions

13For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request to anonymize these proceedings is denied. This ruling is made without prejudice to the applicant’s right to renew her request at a later stage if it becomes evident that an anonymization order has become necessary to protect her privacy interests.

b. The respondents’ request to remove Brad Tucker as a personal respondent is granted. The style of cause shall be amended accordingly.

c. The applicant’s objection to the respondents’ filing of the MoA is denied. The applicant must file her Response to the respondents’ request to dismiss within 14 days of this Interim Decision. If the applicant does not file her Response within 14 days of the Interim Decision, the Tribunal will make a decision on the respondents’ request based on the material before it.

14I am not seized of this matter.