Human Rights Tribunal of Ontario
B E T W E E N:
D.H. Applicant
-and-
The Governing Council of the Salvation Army in Canada and the Good Shepherd Centre of Hamilton Respondents
INTERIM DECISION
Adjudicator: Brian Cook Date: April 22, 2015 Citation: 2015 HRTO 509 Indexed as: D.H. v. The Governing Council of the Salvation Army in Canada
1This Interim Decision is further to the telephone conference call hearing held on February 6, 2015 and things that have happened since that hearing.
2The issues dealt with at the hearing included:
- The applicant’s request to add the Municipality of Halton and the Regional Municipality of Peel;
- The applicant's requests to add additional allegations of discrimination;
- Whether the Application should be dismissed in whole or in part as having no reasonable prospect of success; and
- The applicant's request that an earlier Interim Decision, and any future publicly available documents, be anonymized with respect to the applicant.
3Following the February 6, 2015 hearing, the two proposed additional respondents were given an opportunity to make written submissions on the issue of whether they should be added as respondents. Those submissions have been received.
4The applicant was given the opportunity to make written submissions on his request for anonymity and also to respond to the submissions of the proposed additional respondents. The applicant has not provided these submissions, but instead has filed a series of requests for an extension of time for filing the submissions. The applicant has explained that he has been experiencing considerable personal difficulties and stress, and is involved in other complex legal matters.
The applicant’s request for anonymity
5Interim Decision 2014 HRTO 171 concluded that the Application should be dismissed as against the Ontario Ministry of Health on the basis that it had no potential liability for any of the alleged discriminatory events at the shelters operated by the remaining respondents. The Interim Decision discussed details about the applicant’s disability, periods of homelessness, and use of marijuana. The applicant alleges that this personal information was not necessary to the decision and puts him at personal safety risk because of “the black market for this substance” and also that the discussion of his homelessness could result in “public embarrassment”.
6The respondents opposed the applicant’s request, noting that the Tribunal’s approach is to grant anonymity only in exceptional circumstances.
7The Tribunal’s Practice Direction On Anonymization of HRTO Decisions (Effective April 2014) 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. The Tribunal has granted requests for anonymization where there is highly sensitive medical information or particularly sensitive information related to an acute mental health crisis.
8The Tribunal has stated that the applicant must be able to show that the personal and public interests in favour of safeguarding privacy outweigh the principle of disclosure and the desirability of a transparent human rights process (see, for example, Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230 at paragraph 10).
9In the circumstances of this case, I find that it is appropriate to anonymize this Interim Decision and Interim Decision 2014 HRTO 171. The sensitive personal information in the earlier Interim Decision was not necessary for the decision reached which considered only whether there was any potential liability for a respondent.
10In regard to any future Decision in this case, and whether it should be anonymized, I find I would require further evidence about the potential risks to the applicant in order to determine if the applicant's circumstances are sufficiently exceptional as to outweigh the principle of disclosure and the desirability of a transparent human rights process.
11This issue may accordingly be addressed at a later time. There is no reason for the applicant to make submissions on this issue at this time.
The request to add the Municipalities as respondents
12The applicant is entitled to make submissions to reply to the submissions received from the Municipalities about why they should not be added as respondents. Essentially, the Municipalities argue that they have no liability for anything that is alleged to have occurred at the shelters because they do not operate the shelters. They also argue that any allegations about the Municipalities have not been made within one year of when the alleged events occurred and that any allegations should therefore be dismissed because of section 34 of the Code which provides:
- (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
13In responding to the submissions of the Municipalities about whether they should be added as respondents, the applicant may wish to focus on these two issues.
14I appreciate that the applicant has experienced difficulties in preparing these submissions which is why his requests for an extension of time have been granted on several occasions already. However, it is not fair to the other parties for one party to unduly delay the process. If the applicant wishes to make submissions on the request to add the Municipalities, they must be filed with the Tribunal and the other parties no later than June 1, 2015. No further extension will be granted and the Tribunal will make its determination on the basis of the submissions and documents that have been filed to that date.
Request to amend the Application to include allegation of reprisal
15This request is based on an allegation by the applicant that he was not permitted to stay at the Wilkinson Road Shelter in reprisal for having filed the Application. In my view, it makes sense to deal with this allegation in the context of the other issues