HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
E.C.
Applicant
-and-
Ready Employment Agency
Respondent
INTERIM DECISION
Adjudicator: Leslie Reaume
Indexed as: E.C. v. Ready Employment Agency
1The applicant filed this Application alleging that discrimination with respect to employment on the basis of sex contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Tribunal initiated a Notice of Intent to Dismiss this Application. The applicant’s response clarified the issues raised in the Notice. This Interim Decision addresses the applicant’s request for anonymization and the respondent’s failure to respond to the Application.
2This Application was originally filed against two respondents. The applicant indicates that she wishes to withdraw against the first respondent Deco Labels and Tags Ltd. (“Deco”). Deco provided a Response to the Application and indicated that it had no involvement in the issues, which gave raise to the applicant’s allegations of discrimination. Deco has been removed as a respondent from this Application and the style of cause of this Interim Decision has been changed to reflect that decision.
3On August 29, 2015, the Tribunal issued a Case Assessment Direction containing the following information:
The second respondent, Ready Employment Agency, has not filed a Response. On June 25, 2015 the Tribunal wrote to the respondent advising the following:
On May 1, 2015, the Human Rights Tribunal of Ontario (HRTO) issued a Notice of Application to the respondents in which it directed that a Response to the Application must be filed with the HRTO no later than June 5, 2015.
As of the date of this letter, the respondent Ready Employment Agency (aka Ready Jobs) has not filed a Response, nor has the HRTO’s correspondence to it been returned.
An Application to the HRTO starts a legal proceeding. A finding that a violation of the Code has occurred may lead to various orders, including monetary compensation, other forms of restitution to the applicant, and orders to take action to promote compliance with the Code. Failure to file a Response or participate in a HRTO proceeding may lead to orders against individual and corporate respondents without their participation. The respondent’s attention is drawn to Rule 5.5 of the HRTO’s Rules of Procedure which reads as follows:
5.5 Where an Application is delivered to a Respondent who does not respond to the Application, the Tribunal may:
a) deem the Respondent to have accepted all of the allegations in the Application;
b) proceed to deal with the Application without further notice to the Respondent;
c) deem the Respondent to have waived all rights with respect to further notice or participation in the proceeding; and/or
d) decide the matter based only on the material before the Tribunal.
The applicant has provided a mailing address and a fax number for the respondent. As such, a copy of this letter is being sent to the respondent by regular mail, and courier and fax.
If the respondent wishes to participate in this proceeding, it shall file a Response with the HRTO by July 10, 2015, together with an explanation of why the Response was not filed in accordance with the Notice of Application. If a Response is not received, the HRTO may proceed without further notice to the respondent and may take any or all of the steps set out in Rule 5.5.
On June 26, 2015, the Tribunal received an email from Readyemployment@yahoo.ca, requesting a copy of the Application. On the same day, the email was returned by the Tribunal with a copy of the Application and the Notice of Intent to dismiss and a copy of the letter of June 25, 2015. The respondent has not contacted the Tribunal since that date.
It is not clear that the respondent Ready Employment Agency has been advised that the Notice of Intent to Dismiss has been withdrawn and the Application is continuing in the Tribunal process. For that reason, I consider it appropriate to give the respondent one final opportunity to file a Response.
4The respondent was directed to file a Response with the Tribunal and a response to the applicant’s request for anonymization. The Case Assessment Direction (“CAD”) indicated that if a response was not received, the Tribunal would proceed without further notice and the respondent will be deemed to have accepted all of the allegations in the Application.
5The Tribunal’s CAD was sent by email to the address supplied by the respondent and regular mail. The copy sent by mail was not returned to the Tribunal.
6I find that the respondent has received notice of these proceedings. It appears that the respondent refuses or has chosen not to participate in this proceeding, notwithstanding notice of the implications of Rule 5.5. In the circumstances, pursuant to Rules 5.5 (a), (b) and (c), the Tribunal orders that the respondent is deemed (1) to have accepted all the allegations in the Application; and (2) to have waived all rights with respect to further notice or participation in the proceeding.
7The Applicant will advise the Tribunal within 10 days of this Interim Decision whether she wishes to proceed to have the Application determined in writing or by way of oral submissions.
Anonymization
8The applicant self-identifies as a male-to-female transexual person. She has filed a request that the Tribunal use initials rather than her full name throughout the course of the Tribunal proceedings.
9In support of the Request, the applicant submits that if her identity as a transexual person were publicly revealed through the Tribunal proceedings, she would be at further risk of experiencing what she describes as widespread and intense prejudice against transexual persons. She is currently unemployed but actively looking for work, and is concerned that the publication of her name and the details of her gender identity will impede her efforts to obtain interviews and secure employment.
10The applicant is not requesting a full publication ban and therefore, the public’s right to an open hearing would not be infringed.
11The Tribunal has dealt with the issue raised by the applicant in XY v. Ontario (Government and Consumer Services), 2010 HRTO 1906 (“XY”), and K.M. v. Sunnybrook Health Sciences Centre, 2012 HRTO 1505, which address the question whether privacy and security interests outweigh the principles of an open justice system.
Analysis
12Rule 3.11 of the Tribunal’s Rules of Procedure 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. The Tribunal has also invoked Rule 3.11 as the basis upon which to anonymize parties in proceedings before it.
13The Tribunal’s Practice Direction on Anonymization of HRTO Decisions emphasizes the need for the Tribunal to balance the important privacy interests of the parties with the importance of maintaining a fair and open human rights process. The Practice Direction states:
While all requests for anonymization are considered on a case-by-case basis, the HRTO’s general approach is to balance the public interest in freedom of expression and open justice against any significant consequences of identifying the person requesting anonymization.
14The Tribunal has acknowledged the limited effect that anonymization has on the openness of the Tribunal’s process. As stated in C.M. v. York District School Board, 2009 HRTO 735 at para 25:
The use of initials will only affect the text provided by the Tribunal to the parties and the public, including the Canadian Legal Information Institute, on whose web site the Tribunal’s decisions are published.
15I accept that revealing the applicant’s full identity risks subjecting her to stigma and prejudice and could impede her ability to find employment as well as live in and express her gender identity. I find that the protection of the applicant’s interests outweigh the interests of a fully open process particularly in light of the fact that the applicant is only requesting that we use initials and is not requesting a full publication ban.
16For all of these reasons, including the fact that the respondents were given an opportunity to respond to this request and have not done so, I grant the Request for anonymization. The applicant shall be referred to by the initials “E.C.” in these proceedings.
17The order to anonymize applies only to the respondents and the Tribunal.
Orders
18In sum, the Tribunal makes the following orders:
The Application is dismissed as against Deco Labels Tags Ltd.;
The respondent Ready Employment Agency is deemed to have accepted all the allegations in the Application;
The respondent Ready Employment Agency is deemed to have waived all rights with respect to further notice or participation in the proceeding; and
The applicant shall be referred to by the initials “E.C.” in these proceedings.
19The Applicant will advise the Tribunal within 10 days of this Interim Decision whether she wishes to proceed to have the Application determined in writing or by way of oral submissions.
20I am not seized of this matter.
Dated at Toronto, this 7th day of October, 2015.
“Signed By”
Leslie Reaume
Vice-chair