A.B. v. Hamilton (City), 2015 HRTO 745

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anita (Poe) da Costa on behalf of A.B.

Applicant

-and-

City of Hamilton and Hamilton Street Railway Company

Respondents

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: June 8, 2015

Citation: 2015 HRTO 745

Indexed as: A.B. v. Hamilton (City)

WRITTEN SUBMISSIONS

Anita (Poe) da Costa on behalf of A.B., Applicant

Pierre Cloutier de Repentigny, Counsel

City of Hamilton and the Hamilton Street Railway Company, Respondents

Byrdena MacNeil, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to goods, services or facilities because of disability, gender expression and gender identity.

2The applicant is a transgender woman. She has filed a Request for an Order During Proceedings that the Tribunal use initials rather than her full name throughout the course of the Tribunal proceedings. The applicant also requests that the Tribunal not publically reveal any information that could lead to her identification, including her name; addresses; details of her occupational and educational history; and details of her sources of income.

3In support of the Request, the applicant submits that if her identity as a transgender woman were publicly revealed through the Tribunal proceedings, her personal security could potentially be at risk, as well as the risk of her experiencing harassment and discrimination. She submits that publicly identifying her as a transgender woman would limit her ability to live and express her true gender identity. The applicant submits that she is particularly at risk due to her disability and her extremely limited social support. The applicant submits that because she is not requesting a full publication ban, the public’s right to an open hearing would not be infringed. In addition, she submits that revealing her full identity would have a “chilling impact” on her willingness to reveal the sensitive information that might be necessary for the Tribunal proceeding. This could result in limiting her access to justice and redress for the alleged acts of discrimination that she has experienced as a result of being a transgender woman.

4The applicant relies upon the Tribunal’s decisions in XY v. Ontario (Government and Consumer Services), 2010 HRTO 1906 (“XY”), and K.M. v. Sunnybrook Health Sciences Centre, 2012 HRTO 1505, in support of her submissions that her privacy and security interests outweigh the principles of an open justice system in her case.

5The respondents have provided no submissions in response to the Request.

ANALYSIS AND DECISION

6Rule 3.11 of the Tribunal’s Rules of Procedure provides that the Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so. The Tribunal has also invoked Rule 3.11 as the basis upon which to anonymize parties in proceedings before it.

7The Tribunal’s Practice Direction on Anonymization of HRTO Decisions emphasizes the need for the Tribunal to balance the important privacy interests of the parties with the importance of maintaining a fair and open human rights process. The Practice Direction states:

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.

8The Tribunal has acknowledged the limited effect that anonymization has on the openness of the Tribunal’s process. As stated in C.M. v. York District School Board, 2009 HRTO 735 at para 25:

The use of initials will only affect the text provided by the Tribunal to the parties and the public, including the Canadian Legal Information Institute, on whose web site the Tribunal’s decisions are published.

9In this Application, as the Tribunal has done in other Applications, it is important for the Tribunal to acknowledge the serious risks to the applicant that could result from a breach of her privacy. I accept, as the Tribunal did in XY, that revealing the applicant’s full identity risks subjecting her to stigma and prejudice and could impede her ability to live in and express her gender identity. I find that the protection of the applicant’s interests outweigh the interests of a fully open process particularly in light of the fact that the applicant is only requesting that we use initials and not reveal any other details that could lead to her identification and is not requesting a full publication ban.

10For all of these reasons, including the fact that the respondents have not opposed the request nor the facts and submissions on which it is based, I grant the Request for anonymization. The applicant shall be referred to by the initials “A.B.” in these proceedings. The Tribunal will not include any potentially identifying details such as the applicant’s name; past or present addresses; employment or educational history; and income source details in its decisions and directions unless these details are absolutely necessary to understand the decision or analysis. If the Tribunal determines that it is necessary to include these details, that information shall be redacted from any documents that are publicly available.

11The respondents shall also refer to the applicant by the initials “A.B.” and shall not include any potentially identifying details in any of their communications about this Application.

12The order to anonymize and to not use personal identifiers applies only to the respondents and the Tribunal. Should the applicant want any broader order to protect her privacy, she will need to make a further request.

ORDER

13Tribunal makes the following orders:

a. The applicant shall be referred to by the initials “A.B.” in these proceedings.

b. The Tribunal will not include any potentially identifying details such as the applicant’s name; past or present addresses; employment or educational history; and income source details in its decisions and directions unless these details are absolutely necessary to understand the decision or analysis. If the Tribunal determines that it is necessary to include these details, that information shall be redacted from any documents that are publicly available.

c. The respondents shall also refer to the applicant by the initials “A.B.” and shall not include any potentially identifying details in any of their communications about this Application.

14I am not seized.