HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

M.D.

Applicant

-and-

Durham Children’s Aid Society, Matthew Sweet and Sheri Makarczuk

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: May 12, 2015

Citation: 2015 HRTO 615

Indexed as: M.D. v. Durham Children’s Aid Society

WRITTEN SUBMISSIONS

M.D., Applicant

Self-represented

Durham Children’s Aid Society, Matthew Sweet and Sheri Makarczuk, Respondents

Vincent Panetta, Counsel

1This Interim Decision addresses the respondents’ request for confidentiality orders as well as the applicant’s request to add two personal respondents to the Application.

CONFIDENTIALITY ORDERS

2The respondents have requested the following confidentiality orders:

a. An order that all pleadings and documents in the Tribunal’s file be sealed and not form part of the record;

b. An order that all proceedings in this matter be closed to the public;

c. An order that no identifying information regarding the applicant or his child be provided by the Tribunal to anyone other than the parties, their counsel or members of the Tribunal and staff; and

d. An order that only the initials of the applicant (M.D.) be used in any communications by or with the Tribunal and in any pleading.

3In addition, the respondents seek an order extending the time for it to file its Response to the Application.

4The Application alleges that the applicant was discriminated against on the basis of race, colour and gender identity contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). He also alleges that he was reprised against within the meaning of the Code. Specifically, he alleges that two employees of the organizational respondent inappropriately dealt with concerns he raised about his former spouse’s care of their child. He alleges that they inappropriately dealt with his concerns due to his race, colour and/or sex.

5The respondents take the position that they cannot effectively respond to the applicant’s allegations without the above confidentiality orders. The reason for this is that the respondents are prohibited by virtue of the provisions of the Child and Family Service Act, R.S.O. 1990, c. C.11, as amended, from publicly disclosing confidential information regarding the applicant’s child.

6The applicant opposed the respondents’ request on the basis that it is not yet clear that the respondents will be required to divulge confidential information. The applicant also notes that he has already participated in two proceedings before the Child and Family Services Review Board (“CFSRB”). He is also involved in a proceeding in family court and has been granted permission by the CFSRB to file a redacted version of its two decisions in that court. Based on this, the applicant submits that the information that the respondents seek to keep confidential is already publicly available.

Analysis

7Any proceedings under Part III of the Child and Family Services Act, R.S.O. 1990, c. C.11 (“CFSA”) are subject to s. 45(8) of that legislation, which states:

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

8In light of the provisions in s. 45 of the Child and Family Services Act, as well as the significant privacy interests at stake in this Application, I find that the respondents’ requested orders are appropriate.

9I cannot comment on how s. 45(8) of the CFSA is given effect in the applicant’s family court proceeding. For the purposes of this proceeding, the respondents will be required to provide a Response to the applicant’s discrimination allegations. This will require providing information to explain why their actions toward the applicant were not discriminatory. This will almost inevitably involve information that has the potential to identify the applicant’s child and/or the child’s parents. For this reason, I find it appropriate to grant the requested orders set out in subparas. 2 (c) and (d) above.

10With respect to the respondents’ request for a sealing order, it should be noted that materials filed with the Tribunal are not publicly available in the same way as court documents. As a result, a sealing order in this case does not have the same importance as it would in the context of a court proceeding in which pleadings are publicly available. Nevertheless, there are circumstances in which Tribunal materials may be accessed by the public, for example through freedom of information requests. Therefore, I find it appropriate to grant the order set out in subpara. 2 (a) above with one small change. The pleadings and documents in the Tribunal’s file must form part of the Tribunal’s record of proceedings. However, they will not form part of the “public record” in the sense that they will not be made available to the public or distributed to any person (except the parties and their legal counsel), without further order of the Tribunal.

11Finally, I have considered whether it is appropriate to order that the hearing in this case be closed to the public. The respondents rely upon the CFSRB’s Rules of Procedure in support of this request. The Tribunal is not bound by the CFSRB’s Rules of Procedure. Nevertheless, I find that it is appropriate to grant the respondents’ request that the hearing be closed to the public in order to ensure that no information is made public that would contravene s. 45(8) of the CFSA.

REQUEST TO ADD PERSONAL RESPONDENTS

12The applicant has requested that the two individuals he named as representatives of the organizational respondent be added as personal respondents to the Application. These two individuals are, Matthew Sweet, a family service worker assigned to the applicant’s case, and Sheri Makarczuk, a supervisor involved in the matter.

13The analysis applied by the Tribunal when dealing with requests to add respondents is the analysis set out in Smyth v. Toronto Police Services Board, 2009 HRTO 1513, at para. 12 (“Smyth”). In Smyth, the Tribunal set out the following three considerations for deciding whether to add a respondent:

1. Are there allegations made that could support a finding that the proposed respondent violated the Code?

2. If the proposed respondent is an individual and an organization is also named, is there a compelling reason to include him or her as a respondent?

3. Would it be fair, in all the circumstances, to add the proposed respondent?

14When considering the second factor set out in Smyth, the Tribunal has applied the factors set out in Persaud v. Toronto District School Board, 2008 HRTO 31 at para. 5. These factors focus mainly on whether the organizational respondent is responsible for the conduct of the proposed personal respondent, and whether there is a compelling legal reason for an individual to be named as a personal respondent. In particular, there may be a compelling legal reason for an individual to be named as a personal respondent if his or her conduct is a central issue in the case and extends beyond implementing organizational policies or practices. A compelling legal reason may also exist where the nature of the alleged conduct may make it appropriate to award a remedy specifically against the proposed personal respondent if a Code infringement is found. See Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 at para. 42 and Persaud at para. 5.

15Based on the Application, it is clear that Mr. Sweet and Ms. Makarczuk’s conduct are central issues in the Application. I appreciate that it is the respondents’ position that both of these individuals were acting in the course of their employment at all material times. I am also aware that this Application remains at a very preliminary stage and that the Tribunal has very limited materials before it at this stage. However, since the conduct of Mr. Sweet and Ms. Makarczuk are central to the matters in this proceeding, I am satisfied that they should be added as personal respondents.

ORDER

16For the above reasons, the Tribunal orders as follows:

e. The applicant’s name shall be substituted with his initials, M.D., in any communication by or with the Tribunal and in any pleading;

f. The style of cause is amended to reflect this change;

g. No identifying information regarding the applicant or his child will be provided by the Tribunal to anyone other than the parties, their counsel or members of the Tribunal and staff;

h. All pleadings and documents in the Tribunal’s file for this Application will be sealed, so that they are not available to the public or distributed to any person (except the parties and their legal counsel), without further order of the Tribunal;

i. All proceedings in this matter will be closed to the public;

j. The applicant’s request to add Matthew Sweet and Sheri Makarczuk as personal respondents is granted and the style of cause is amended accordingly; and

k. The respondents are granted an extension of time to file their Response. The Response must be filed no later than 35 days from the date of this Interim Decision.

17I am not seized of this matter.