R.C. v. University of Ottawa, 2015 HRTO 230

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

R.C.

Applicant

-and-

University of Ottawa

and T.K.

Respondents

DECISION

Adjudicator: Mark Hart

Date: February 24, 2015

Citation: 2015 HRTO 230

Indexed as: R.C. v. University of Ottawa

WRITTEN SUBMISSIONS

R.C., Applicant

Kate Sellar, Counsel

University of Ottawa and T.K., Respondents

Julie Sicotte, Counsel

1This Decision is written in response to a Request for Order during Proceedings dated July 17, 2014 and filed by the applicant, seeking anonymization of an Interim Decision issued by this Tribunal and in any decision issued in response to her Request for Order.

2The Interim Decision dated November 30, 2012 granted the Applicant’s request to adjourn scheduled hearing dates based on medical reasons, and issued a series of directions with respect to disclosure and other procedural issues.

3In her Request, the applicant states that, “on the same day that the Interim Decision was issued, the parties reached a full and final settlement of the Application”. While that statement appears to be true as between the parties, the Tribunal was not advised that the matter had settled until December 10, 2012 and a Confirmation of Settlement (Form 25) was not filed until December 14, 2012. By letter dated December 17, 2012, the Tribunal confirmed receipt of the Form 25 and advised the parties that the Application was finally disposed of and the Tribunal’s file closed.

4Sometime after the Interim Decision was issued, it was posted to the online database, as is a normal part of the Tribunal’s process. decisions are not generally searchable by the names of the parties in web-based search engines such as Google.

5The applicant asserts that subsequently the Interim Decision was “posted to Google by a third party organization”. In fact, what occurred is that this third party organization set up its own website where it has posted decisions from and which is searchable through Google and other general internet search engines. The Tribunal understands that this organization contacts parties who have been identified in Tribunal decisions, makes them aware that their names are now searchable, and requests payment to take down the decisions that include their names. Apparently, this organization may now also be asking such individuals to provide personal information, including picture identification, full contact information and a signature. This is what was requested of the applicant. Understandably, she is reluctant to provide such personal information, and has not done so.

6The initial issue I need to address is whether, at this stage, this Tribunal has any adjudicative jurisdiction under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) to do what the applicant requests, which engages the functus officio principle. As this principle had not been addressed by the applicant in her initial submissions, I issued a Case Assessment Direction dated December 29, 2014 requesting submissions on this point, which were provided by the parties on January 16, 2015.

7There have been a number of decisions of this Tribunal which have considered the principle of functus officio. In Stephens v. Lynx Industries Inc., 2006 HRTO 31, this Tribunal discussed this principle at length, stating (at para. 9):

The common law doctrine of functus officio maintains that a final decision of a decision-making body cannot be reopened except for very limited and exceptional reasons (In re Nazaire Co. (1879), 12 Ch.D. 88, Paper Machinery Ltd. v. J.O. Ross Engineering Corp., 1934 CanLII 1 (SCC), [1934] S.C.R. 186). Originally created for the courts, the doctrine has extended to apply to administrative tribunals as well (Chandler v. Alberta Association of Architects, 1989 CanLII 41 (SCC), [1989] 2 S.C.R. 848; Grier v. Metro International Trucks Ltd. (1996) 1996 CanLII 11795 (ON SC), 28 O.R. (3d) 67 (Div. Ct) (Grier). In the case of administrative tribunals, four exceptions to the functus doctrine justifying the reopening of a decision can be discerned from the jurisprudence. These are situations in which:

a. the power to reopen has been conferred on the tribunal by legislation (see e.g. Grillas v. Minister of Manpower and Immigration, 1971 CanLII 3 (SCC), [1972] S.C.R. 577)

b. the tribunal has failed to dispose of an issue which is fairly raised by the proceedings and of which the tribunal is empowered by its enabling statute to dispose (see e.g. Chandler, supra)

c. the tribunal has made a clerical error or error in expressing its manifest intention (see In re Nazaire Co. (1879), 12 Ch.D. 88, Paper Machinery Ltd. v. J.O. Ross Engineering Corp., 1934 CanLII 1 (SCC), [1934] S.C.R. 186)

d. the tribunal has made an error that renders its decision a nullity such as “a denial of natural justice which vitiate[s] the whole proceedings” (see Chandler at para. 25, Ridge v. Baldwin, [1964] A.C. 40(H.L.) ) or “a misapprehension of an important fact lying at the heart of the litigation” (Grier, supra) which may stem from its reliance on factual errors made by the parties (see e.g. Grier, supra; Kingston (City) v. Ontario(Mining & Lands Commissioner) (1977), 1977 CanLII 1267 (ON SC), 18 O.R. (2d) 166 (Div. Ct.)) (Kingston)).

8Subsequent Tribunal decisions have extended the exceptions to the functus principle in situations where a party’s request for an adjudicative decision of this Tribunal arises in relation to the implementation of an order made by the Tribunal in its final decision: see for example McKinnon v. Ontario (Ministry of Correctional Services) (No. 4) (1999), 1999 CanLII 35204 (ON HRT), 35 C.H.R.R. D/191 upheld by Ontario (Ministry of Correctional Services) v. Ontario (Human Rights Comm.) (2001), 2001 CanLII 28415 (ON SC), 39 C.H.R.R. D/308 (Div. Ct.); and Ball v. Ontario (Community and Social Services), 2010 HRTO 1990.

9In the instant case, the principle of functus officio does not strictly apply, as there is no final decision of this Tribunal in the underlying matter that the applicant is seeking to re-open. Rather, upon the parties notifying the Tribunal of their settlement and filing the Confirmation of Settlement form (Form 25), the underlying Application was considered to have been finally disposed of and the Tribunal’s file in the matter was closed administratively.

10Having said that, in my view, this Tribunal does not retain greater adjudicative jurisdiction in relation to a file that was closed administratively than it does in cases where it has rendered a final decision. In my view, the rationale underlying the functus officio principle is equally applicable when an Application is finally disposed of based upon the filing of a Form 25 and closed administratively. Quite simply, in my view, once an Application has been finally disposed of, whether by a final decision or the filing of a Form 25 or by withdrawal or abandonment, this Tribunal no longer retains adjudicative jurisdiction in relation to the matter, subject to the limited exceptions to the functus officio principle.

11I am fortified in this conclusion by reference to the Tribunal’s Rules of Procedure (the “Rules”). Rule 19.1 provides that “a party may request that the Tribunal make an order at any time during a proceeding by oral submission in the course of the hearing or by written request” (emphasis added). Rule 1.4 defines “proceedings” before the Tribunal to include “all processes of the Tribunal at any time following the filing of an Application until the Application is finally determined” (emphasis added). I further note that the form required to be filed when seeking an order under Rule 19.1 (Form 10), which is what was filed by the applicant in the instant case, is called a “Request for Order During Proceedings” (emphasis added). Accordingly, in my view and again subject to the exceptions to the functus officio principle, this Tribunal’s jurisdiction to issue an adjudicative order can only be exercised until such time as an application has been finally determined or disposed of.

12The applicant takes the position that her Application was never “finally determined” within the meaning of the definition of “proceedings” under Rule 1.4, on the basis that no final decision was ever issued by the Tribunal in the matter. In my view, the use of the language “finally determined” in Rule 1.4 is broader than just applying to a final decision of this Tribunal. For example: Rule 3.6 refers to the location of the hearing being “determined” by the Registrar; Rule 6.4 states that the Tribunal will “determine” whether an application is complete, which is done by Tribunal staff and is not an adjudicative function; and Rule 19.7 states that the Tribunal will “determine” whether a request for order during proceedings will be dealt with in-person, in writing or electronically, which again is done by Tribunal staff and generally is not an adjudicative function. In contrast, Rule 26, which applies to requests for reconsideration, expressly uses the language “final decision” as opposed to “final determination”. In my view, the words “finally determined” in the definition of “proceedings” in Rule 1.4 are broad enough to encompass the administrative closing of a Tribunal file and do not require a final decision.

13In reaching this conclusion, I also have regard to the need for finality of the Tribunal’s process. If the applicant’s position were correct, then at any time after a file had been administratively closed, whether as a result of settlement or because the application was withdrawn, a party to the proceeding could file a request for order during proceedings seek some form of relief, even years after the fact. In my view, such an interpretation would not make sense and would do violence to the public interest in the finality of Tribunal proceedings.

14Accordingly, I need to consider whether the power to reopen the proceeding in respect of the instant Application has been conferred on the tribunal by legislation. In my view, it has not. The Tribunal’s Rules provide for a party to file a Request to Amend Clerical Errors within 30 days of the issuance of any decision (Rule 25). The applicant has clarified that she is not taking the position that she is requesting to amend any clerical error. Where a matter has been settled, as in the instant case, a party has the ability to file a Contravention of Settlement Application (Rule 24) within six months if the party believes that another party has contravened the settlement (s. 45.9(3)). This too does not apply, as the applicant is not alleging any contravention of the settlement.

15Rather, the applicant relies upon her ability to file a Request for Reconsideration under Rule 26. The problem with this submission is that under Rule 26, reconsideration is only available in relation to a “final decision”. This Tribunal has determined that a final decision for the purpose of requesting reconsideration needs to be “one that disposes of some or all of the central issues in the complaint as between the parties” as opposed to “procedural directions made during the course of a proceeding”: see Sigrist and Carson v. London District Catholic School Board et al., 2008 HRTO 34 at paras. 29 to 42. The Interim Decision at issue in this case merely granted the applicant’s adjournment request and made some procedural directions regarding disclosure, which does not constitute a “final decision” within the meaning of Rule 26.

16To be clear, I am not deciding in this case whether a Tribunal decision which denies a request for anonymization is or is not a “final decision” within the meaning of Rule 26, as that issue does not arise in this case. Rather, in this case, no request for anonymization was made by the applicant until some 19 months after the Tribunal’s file had been administratively closed.

17As a result, this first exception to the functus officio principle does not apply. Neither do any of the other exceptions, as the Tribunal has not failed to dispose of an issue fairly raised in the proceeding, has not made an error that renders its decision a nullity, and is not being asked to make any order regarding the implementation of a remedy granted in a final decision.

18In her submissions, the applicant has raised the case of S.H. v. M[...] Painting, 2009 HRTO 595. In the decision as posted on the website, the names of all individual parties and witnesses and the respondent company have been anonymized. The applicant states: “The Applicant is aware of at least one case that was initially posted to identifying the names of the parties, and then later that version was replaced with an anonymized version of the decision: S.H. v. M […] Painting, 2009 HRTO 595.”

19What occurred in that case is that there was a parallel criminal proceeding in which a publication ban had been issued. This Tribunal was of the view that the publication ban did not extend to require anonymization of the parties’ names in the decision. When forwarded to, that organization reviewed the publication ban in the criminal proceeding and made its own decision to anonymize the names. No adjudicative decision or other direction was made or given by the Tribunal in this regard.

20As a final note, and even if this Tribunal were to have adjudicative jurisdiction to grant the relief requested by the applicant, I note that requesting or directing or any other legal publisher to anonymize the applicant’s name in the Interim Decision would not be effective to achieve what the applicant seeks. The third party organization already has, and apparently has posted on its website, a copy of the Interim Decision as issued with no anonymization. That website is searchable through Google and other web-based search engines. No after-the-fact anonymization on the site will be effective to remedy that reality.

21The Tribunal is sensitive to the desire of some parties’ for anonymization, particularly in the current reality where information about Tribunal decisions can be posted on the internet and at times reveal sensitive personal information. This Tribunal makes every effort in its decisions to minimize the disclosure of non-essential personal information in a manner that is consistent with the requirements under the Rules 3.10 to 3.12 and s. 9 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 that Tribunal hearings generally be open to the public and that its written decisions be available to the public.

22I further note that, typically, where the parties to an application agree to mediation in the Tribunal’s process, requests for adjudicative orders that would result in a published decision generally are deferred until after the mediation has taken place. As a result, where a proceeding settles at mediation, typically there is no published decision in the matter. However, where the parties decline mediation or mediation is not successful in resolving the matter and where an adjudicative order has been requested, the Tribunal typically will need to address such a request through the issuance of a published decision. As a result of the applicant making a request for an adjournment of the hearing in this matter, the Tribunal was required to address this request through an adjudicative decision. Unfortunately the Tribunal was not notified of the settlement until after the Interim Decision had been issued.

23With regard to the applicant’s request that this Decision in response to her Request for Order be anonymized, and while I see the value in this Decision being published, I see no adjudicative reason for identifying the applicant. Accordingly, her request for anonymization of her name in the instant Decision is granted. For this reason, I similarly have anonymized the name of the personal respondent.

ORDER

24For the foregoing reasons, I find that this Tribunal has no adjudicative jurisdiction to consider the applicant’s Request with regard to the Interim Decision. Accordingly, this aspect of the applicant’s Request is denied.

25The applicant’s request for the anonymization of the instant Decision is granted.