Jamal v. Ryerson University, 2015 HRTO 297

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ismat Jamal

Applicant

-and-

Ryerson University, Centennial College of Applied Arts and Technology, and Toronto Rehabilitation Clinic - Lyndhurst Site

Respondents

RECONSIDERATION DECISION

Adjudicator: Mark Hart

Date: March 11, 2015

Citation: 2015 HRTO 297

Indexed as: Jamal v. Ryerson University

1This Decision addresses a Request for Reconsideration filed by the applicant in relation to the Tribunal’s Reconsideration Decision 2014 HRTO 774, dated May 30, 2014, which refused the applicant’s request for reconsideration of her decision to withdraw her Application during the course of the hearing.

2On September 10, 2014, the applicant filed a Request for Reconsideration of the Tribunal’s Reconsideration Decision requesting that her name be anonymized.

3Section 45.7 of the Ontario Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”), provides as follows:

45.7 (1) Any party to a proceeding before the Tribunal may request that the Tribunal reconsider its decision in accordance with the Tribunal rules.

(2) Upon request under subsection (1) or on its own motion, the Tribunal may reconsider its decision in accordance with its rules.

4Requests for Reconsideration are dealt with under Rule 26 of the Tribunal’s Rules. There are a number of issues that arise in relation to the Request for Reconsideration filed by the applicant. First, a Request for Reconsideration is required to be filed within 30 days from the date of the decision: see Rule 26.1. In this case, the applicant filed her request some three and a half months after the date of the decision. While the Tribunal has discretion under its Rules to extend this deadline, there needs to be some reasonable explanation for the delay. The applicant states that, while she had searched for her name through Google in June 2014, she did not find anything. She then states that on August 29, 2014, she found out from a friend that her name could be searched and found on the website. While this may be true, it is my view that, if the applicant was truly concerned about anonymization of her name, she properly ought to have taken reasonable steps to inquire about the publication of the Reconsideration Decision at an earlier time.

5Second, the Tribunal’s Rules state that, where a Request for Reconsideration already has been determined, the Tribunal will not consider a subsequent Request for Reconsideration of the same decision, absent exceptional circumstances: see Rule 26.7.1. The applicant previously sought to rescind her request to withdraw her Application on April 4, 2014, which to her knowledge was treated as a Request for Reconsideration. No issue regarding any request for anonymization of the applicant’s name was made as part of that previous Request for Reconsideration. In fact, in her written submissions filed in support of her previous Request for Reconsideration, the applicant takes the position that the parties’ names, including her own, should not be anonymized. In these circumstances, I find that there are no exceptional circumstances that would justify this Tribunal’s consideration of a second Request for Reconsideration by the applicant regarding the same decision.

6Third, Rule 26.5 sets out four specific bases upon which a Request for Reconsideration may be granted. In her Request for Reconsideration, the applicant has not identified any of these bases for reconsideration as applying to her request nor has she provided any submissions that engage any of these bases for reconsideration.

7Finally, and in any event, the applicant has not provided a sufficient basis to justify granting a request for anonymization of her name. This Tribunal’s Practice Direction On Anonymization of HRTO Decisions (Effective April 2014) provides that, except in the case of an applicant who is a minor, anonymization of an applicant’s name will only be granted in exceptional circumstances. As stated in this Practice Direction:

The HRTO may also anonymize the name of a party or a participant to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so (Rule 3.11). Such an order is only made in exceptional circumstances.

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.

In Mancebo-Munoz v. NCO Financial Services Inc., 2013 HRTO 974, the HRTO noted that “human rights applications often include personal information” and thus it will look for “exceptional conditions of sensitivity or privacy necessitating anonymity” before granting such an order. Some of the principles underlying this approach were discussed in C.M. above:

…this Request raises important issues about the openness of the Tribunal process. An open justice system is a fundamental principle of a free and democratic society, so that the actions of those responsible for interpreting and enforcing the law may be subject to public scrutiny. Moreover, the principles enshrined in the Code are quasi-constitutional rights which are recognized as particularly significant in Canadian society. It is important for there to be public scrutiny when respondents [are] found to have violated these rights and also when accusations of discrimination are made by applicants but not upheld. …it is a serious matter to be accused of breaching the Code, which may also cause stress and stigma. Without good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity, assured that they will not be identified if they are found not credible, their allegations are rejected or they are held to have violated the Code. Effective public scrutiny of this human rights system depends, in part, upon knowing how the Tribunal addresses the particularly parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems.

The HRTO has granted a request for anonymization where there were specific threats to personal safety, where there were parallel criminal proceedings arising from the same facts and relating to an alleged sexual assault, and where there was highly sensitive medical information or particularly sensitive information relating to an acute mental health crisis. (emphasis in original)

8In her Request for Reconsideration, the applicant states only that the appearance of her full name in the Reconsideration Decision dated May 30, 2014 may affect her negatively when she is seeking employment. That rationale would apply to virtually any applicant in the Tribunal’s process, and alone is not a sufficient basis to constitute the kind of exceptional circumstances required for anonymization to be granted.

9I further note that the applicant’s name appears not only in the Reconsideration Decision dated May 30, 2014, but also in an Interim Decision issued in this proceeding dated July 16, 2013 (2013 HRTO 1231). To the extent that the applicant also is seeking anonymization in respect of this previous decision, I note that a reconsideration request must be made in relation to a “final decision” of the Tribunal, as opposed to this earlier Interim Decision dealing only with the removal of certain respondents; any request for anonymization made by the applicant in relation to this earlier decision would have been made almost one and a half years after the date of the decision, which is well beyond the period allowed for reconsideration; the applicant does not provide any available basis for reconsideration within the meaning of Rule 26.5; and the basis for the applicant’s request does not satisfy the requirement for exceptional circumstances.

10For all of the foregoing reasons, the applicant’s Request for Reconsideration is denied.