HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kovarthanan Konesavarathan
Applicant
-and-
Middlesex London Health Unit
Respondent
INTERIM DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Konesavarathan v. Middlesex London Health Unit
WRITTEN SUBMISSIONS
Kovarthanan Konesavarathan, Applicant
Self-represented
Middlesex London Health Unit, Respondent
Jodi Gallagher Healy, Counsel
1On November 13, 2015, the respondent filed a Form 10 Request for an Order During Proceedings (“RFOP”) requesting that the Tribunal issue a “confidentiality order” with respect to job application and interview documentation, as well as an order “requiring the Applicant to refrain from contacting other job applicants absent leave from the Tribunal”. The respondent states the information is highly sensitive and involves non-parties. It references Rule 3.3 of the Tribunal’s Rules of Procedure, which states:
Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.
2The respondent submits the applicant is unrepresented, and given the scope and nature of his Application, he may try and identify other job applicants and contact them. The respondent wishes to protect the personal information and privacy of its job applicants, and notes that although it will redact names, it may be possible to identify the applicants in any event.
3The respondent submits that measures to protect the confidentiality of the information and the third party job applicants’ privacy warrant measures over and above the undertaking in Rule 3.3 and the respondent’s redactions.
4The applicant filed a Form 11 Response to the RFOP in which he agreed to abide by Rule 3.3., and noted that the respondent’s request did not seem to be supported by evidence or case law. The applicant objected to the respondent appearing to assume he may take certain actions because he is self-represented.
decision
5In addition to Rule 3.3, Rule 3.11 also addresses issues of confidentiality. It states:
The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.
6The respondent is not alleging that the applicant has breached confidentiality, but seeks to ensure he does not do so in the future in order to protect non-parties to this Application.
7First, the parties must comply with Rule 3.3 of the Tribunal’s Rules of Procedure, the purpose of which was discussed in Bernard v. Lakehead University, 2011 HRTO 977, as follows:
[…] all documentary and oral information obtained during the course of these proceedings [is] subject to Rule 3.3 of the Tribunal’s Rules of Procedure, which essentially, articulates the implied undertaking rule. This rule stipulates that information obtained in the course of a proceeding cannot be used by the parties for any purpose other than in the proceedings before the Tribunal.
The Supreme Court of Canada explained the rationale for the underlying implied undertaking rule in Juman v. Doucette, 2008 SCC 8 at para. 25. Among other things, it held that the public interest in getting at the truth in a proceeding often requires the invasion of a litigant or third party’s privacy interests. Those privacy interests are, nevertheless, entitled to a measure of protection; the invasion of privacy should generally be limited to the level of disclosure necessary to satisfy the purpose of the legal proceeding and that purpose alone.
8In light of Rules 3.3 and 3.11 and the sensitivity of the information contained in the job application and interview documentation that will be disclosed, the applicant, as he already has promised, may not use the disclosed documents for any purpose outside of the proceedings before the Tribunal. The applicant may not disclose them or their contents outside this context, and may not disclose them or their contents to third parties. Implicit in this is that the applicant may not contact any of the job applicants without an order from the Tribunal. I note the applicant gave an undertaking in his Form 11 Response to the RFOP not to contact the job applicants.
order
9The Tribunal orders:
a. The applicant shall keep confidential and not disclose outside of these proceedings before the Tribunal or to any third parties any of the job application and interview documentation that the respondent discloses to him; and
b. The applicant shall not contact any of the other job applicants without an Order from the Tribunal.
Dated at Toronto, this 16th day of December, 2015.
“Signed By”
Dawn J. Kershaw
Vice-chair