O.L. v. Sun Media Corporation, 2015 HRTO 857

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

O.L.

Applicant

-and-

Sun Media Corporation c.o.b. as The Toronto Sun, Quebecor Inc.,

Chris Krygiel, Chris Harrison, Mike Power, James Wallace,

Kevin Hann, Jonathan Kingstone and Lisa Lisle

Respondents

RECONSIDERATION DECISION

Adjudicator: Dawn J. Kershaw

Date: June 25, 2015

Citation: 2015 HRTO 857

Indexed as: O.L. v. Sun Media Corporation

WRITTEN SUBMISSIONS

O.L., Applicant

Self-represented

Sun Media Corporation, Respondent

Richard J. Charney, Counsel

Introduction

1In Decision, 2015 HRTO 554, dated May 1, 2015 ("the Decision"), the Tribunal dismissed the Application in its entirety for the following reasons:

a. that to allow the applicant to re-litigate her termination from employment would be an abuse of process and contrary to the intent of s. 45.1 of the Code;

b. that certain of the allegations were untimely; and

c. that certain of the allegations had no reasonable prospect of success.

2On May 12, 2015, after the Decision was issued, the applicant for the first time filed a Form 10 Request for an Order During Proceedings, requesting that the Tribunal anonymize the Decision and other decisions made by the Tribunal with respect to this Application.

3The applicant submits she wishes to protect her privacy, dignity rights and professional livelihood. She submits she does not want her sensitive and personal medical conditions made public, nor does she want the stigma attached to her medical issues. Finally, she argues she does not wish her medical issues disclosed because they may affect her future employability.

4On May 20, 2015, in response to the respondents' Form 11 Response to a Request for an Order During Proceedings that they do not consent to the request, but do not oppose it, the applicant further submits anonymization should be granted because the Decision refers to the applicant's grievance arbitration decision, which was anonymized, and which includes details of the applicant's medical history.

5This decision is based solely on the applicant's submissions, given that the respondents do not oppose the request.

analysis

6The Tribunal has considered the issue of anonymization after a decision has been issued. See: C.C. v. […] Restaurant, 2014 HRTO 1821. In that case, the Tribunal considered the issue of whether the Tribunal has jurisdiction to consider submissions filed by a party after a final judgement had been issued, and concluded it did not because of the legal doctrine of functus officio. However, it treated the applicant's request as a Form 20 Request for Reconsideration. I see no reason to depart from this, and I have treated the applicant's Form 10 Request for an Order During Proceedings in this case as a Form 20 Request for Reconsideration.

7Under section 45.7 of the Code, the Tribunal may, at the request of a party or on its own initiative, reconsider its decisions in accordance with Tribunal's Rules of Procedure ("Rules").

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.

8The Rules, which govern such requests, as well as a Practice Direction to provide guidance to the community on the Tribunal's exercise of its reconsideration powers (Practice Direction on Reconsideration, January 2008 amended March 2010). Rule 26 states in part:

26.1 Any party may request reconsideration of a final decision of the Tribunal within (thirty) 30 days of the date of the decision.

26.5 A Request for Reconsideration will not be granted unless the Tribunal is satisfied that

(a) there are new facts or evidence that could potentially be determinative of the case and that could not reasonably have been obtained earlier; or

(b) the party seeking reconsideration was entitled to but, through no fault of its own, did not receive notice of the proceeding or a hearing; or

(c) the decision or order which is the subject of the reconsideration request is in conflict with established jurisprudence or Tribunal procedure and the proposed reconsideration involves a matter of general or public importance; or

(d) other factors exist that, in the opinion of the Tribunal, outweigh the public interest in the finality of Tribunal decisions.

9The Tribunal's Practice Direction on Reconsideration begins with the following statements:

Decisions of the Tribunal are generally considered final and are not subject to appeal. However, parties may request that the Tribunal reconsider a final decision it has made. Reconsideration is a discretionary remedy; there is no right to have a decision reconsidered by the Tribunal. Generally, the Tribunal will only reconsider a decision where it finds that there are compelling and extraordinary circumstances for doing so and where these circumstances outweigh the public interest in finality of orders and decisions.

Reconsideration is not an appeal or an opportunity for a party to repair deficiencies in the presentation of its case.

10One of the Tribunal's mandates, as set out on its website, is to be transparent. The Tribunal's Rules provide that the Tribunal's hearings are open to the public and that its decisions are available to the public. See: Rules 3.10 and 3.12 and section 9(1) of the Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, as amended. The Tribunal also has acknowledged that an applicant, or a witness, likely is going to disclose or testify about information that is personal. See: Marakkaparambil v. Ontario (Health and Long-Term Care), 2007 HRTO 24 at para. 50.

11In C.M. v. York Region District School Board, 2009 HRTO 735 at para. 20, the Tribunal explained the concepts of openness and transparency as follows:

…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 systems depends, in part, upon knowing how the Tribunal addresses the particularly [sic] parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems.

12At the same time, the Tribunal also has recognized that there may be circumstances in which it is appropriate to protect the identity of individuals who are engaged in the Tribunal's process where there are particular issues of vulnerability or potential harm. Rule 3.11 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 privacy interests of these individuals have been recognized in the Tribunal's Practice Direction On Anonymization. It states:

The HRTO has granted a request for anonymization where there were specific threats to personal safety, whether 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.

13See, for example, C.K. v. H.S., 2014 HRTO 1652 at para. 4, and XY v. Housing Connections, 2011 HRTO 1377 at para. 29.

14In this case, if the Tribunal does not anonymize this Decision, it defeats the purpose of the anonymization of the grievance arbitration decision.

15I am satisfied that the reasons for the anonymization request fit within the "other factors" set out in Rule 26.5(d), which support a reconsideration of the Decision. Granting the reconsideration does not change my findings in the Decision, and the Decision remains final.

order

16The identity of the applicant will be referred to only by initials in the Decision and any other Interim Decisions of the Tribunal that have been issued.