S.F. v. Toronto Transit Commission, 2015 HRTO 1571

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

S.F.

Applicant

-and-

Toronto Transit Commission and Wheel-Trans

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: November 19, 2015

Citation: 2015 HRTO 1571

Indexed as: S.F. v. Toronto Transit Commission

WRITTEN SUBMISSIONS

S.F., Applicant

Self-represented

Toronto Transit Commission and Wheel Trans, Respondents

Angela E. Rae, Counsel

Introduction

1The purpose of this Interim Decision is to address the applicant’s request for anonymization of his name in this proceeding. I also make directions below regarding the multiple sets of submissions filed by the applicant in reply to the Response the respondents filed to the Applicant’s Request for Order During Proceedings (“RFOP”).

Anonymization Request

2The applicant filed an RFOP requesting the anonymization of his name in the style of cause for this proceeding. The applicant provided various reasons for seeking anonymization. These include a claim that he would suffer stigma from the release of sensitive medical information regarding his mental disability in this proceeding and his claim that the respondents did not use the names of employees and contractors in its Response and the respondent’s alleged lack of transparency in disclosing the identity of certain of its employees and contractors to the applicant.

3The Tribunal’s Practice Direction on Anonymization of HRTO provides that the Tribunal may anonymize the name of a party to protect the confidentiality of personal or sensitive information where it is appropriate to do so, however, such an order is only made in exceptional circumstances. When determining whether to make an anonymization order, the Tribunal’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.

4Human 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.

5The Tribunal has granted requests for anonymization where highly sensitive medical information will be disclosed during the proceeding and/or where the Tribunal is persuaded that a party may suffer significant stigma as a result of the proceeding. See, for example, J.M. v. St. Joseph’s Health Care, 2009 HRTO 1811 and A.B. v. Western University, 2015 HRTO 428. On the other hand, the Tribunal has declined to grant anonymization requests if it is not persuaded that there is a real and substantial risk to the applicant’s privacy interests in the case. For example, the Tribunal has declined to grant anonymization requests if it is not convinced that a determination of the issues raised in the case will require the disclosure of the sensitive medical information.

6This Application raises a wide range of issues. Some relate to the applicant’s alleged mental disability but most do not. If mediation is unsuccessful and this Application proceeds to a hearing, it will be necessary for the Vice-chair assigned to the case to engage in significant case management with the parties to clearly identify the scope of the applicant’s allegations and to distinguish those allegations that engage the Code and any allegations that do not.

7Having said this, it is evident from the Application that one of the applicant’s claims is that the respondents discriminated against him in the way it addresses mental disabilities which can have physical effects. The applicant claims he has a mental disability that has physical effects and that it is discriminatory for the respondents not to provide Wheel Trans services to him. At this stage, the nature of the applicant’s alleged mental disability, and any effects caused by this disability, are unclear from the materials filed with the Tribunal to date.

8In my view, if this Application proceeds to a hearing on the merits, the Tribunal likely will require evidence regarding the nature of the applicant’s mental disability and evidence to support his claim that the respondents’ treatment of, or approach to, that mental disability is discriminatory. At this stage, it is not possible to determine whether the interest of safeguarding the applicant’s personal privacy in this case outweigh the public interest in a transparent human rights process.

9For these reasons, I find it appropriate to grant the applicant’s anonymization request on an interim basis.

10I specifically find that none of the other reasons provided by the applicant in his RFOP would justify anonymization in this case. Among other things, it was unnecessary for the respondents to use the precise names of employees in their Response. Under s. 46.3 of the Code, the respondents are deemed liable for any act or thing done by any of their employees in the course of their employment. I appreciate that the applicant is frustrated by an alleged lack of transparency by the respondents. However, such an alleged lack of transparency, on its own, is not a reason to grant anonymization.

Replies to RFOP Responses

11The Tribunal’s Rules of Procedure do not provide for a right of reply to Responses filed in relation to RFOPs. The applicant sought permission from the Tribunal to file a reply to the respondents’ Response to his RFOP. The Case Processing Officer assigned to this case advised the applicant that the Tribunal’s Rules do not contemplate further submissions once a party has filed a Response to an RFOP. She advised the applicant that he was permitted to file a reply if he wished but that a Vice-chair would determine whether the reply was accepted.

12The reason the Tribunal’s Rules do not allow for replies is precisely because of what occurred in this case. The applicant filed a reply to the respondent’s Response to his RFOP. The respondent then responded to the applicant’s reply and the applicant then responded to the respondent’s response to his reply.

13In the future, the parties must refrain from replying to any Responses filed in relation to RFOP’s, as such replies are not contemplated by the Rules. If the Tribunal requires a reply from a party, it will direct the party to provide one.

Orders/Directions

14For the reasons set out above, the Tribunal orders/directs as follows:

a. The applicant’s request to anonymize these proceedings is granted on an interim basis only. The style of cause for this proceeding shall be amended to refer to the applicant’s initials. This anonymization shall be applied to my previous Interim Decision, 2015 HRTO 978. The issue of anonymization will be revisited later in these proceedings by the Vice-chair assigned to hear the case on its merits if mediation is unsuccessful; and

b. The applicant is directed to refrain from replying to any Responses to RFOP’s in the future.

15I am not seized of this matter.