Tsehai v. Durham District School Board, 2015 HRTO 968

Human Rights Tribunal of Ontario

B E T W E E N:

Noah Tsehai

Applicant

-and-

Durham District School Board, John Bowyer, Andrea Pemberton and Warren Palmer

Respondents

INTERIM DECISION

Adjudicator: Eva Nichols

Date: July 22, 2015

Citation: 2015 HRTO 968

Indexed as: Tsehai v. Durham District School Board

SUBMISSIONS

Noah Tsehai, Applicant

Osborne G. Barnwell, Counsel

Durham District School Board, John Bowyer, Andrea Pemberton, Warren Palmer, Respondents

Kathryn Bird, Counsel

Introduction

1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination with respect to services because of race, disability, age and reprisal.

2A hearing in this matter began in Toronto on February 19, 2015, continued on June 23, 24, 25 and 30 and is scheduled to continue on September 29, October 6, 7 and 8 and December 1, 2 and 3, 2015.

3This Interim Decision is in response to the applicant's Form 10 Request for an Order During Proceedings (the "RFOP"), submitted to the Tribunal on June 17, 2015.

4In this RFOP, the applicant requested that the Tribunal revert to referring to him by his initials only. Since there were no written reasons submitted with the request, the rationale for the applicant's request and the respondents' response to the request were made by oral submissions on June 25, 2015.

THE BACKGROUND

5This Application was initially filed by the applicant's mother on January 3, 2013. The style of cause at that time was "N.T. by his next friend D.B." since the applicant was a minor.

6The applicant reached the age of majority on May 3, 2014.

7In a Case Assessment Direction, (the "CAD") dated January 28, 2015; I included the following at paragraph 18:

"Finally, I would note that the applicant is no longer under the age of 18. Pursuant to Rule A10.7 of the Tribunal's Rules, the Tribunal may, on its own initiative, remove a litigation guardian because a litigation guardian is no longer needed or the applicant has the capacity to continue the proceeding on their own. If any of the parties dispute the removal of the litigation guardian in this Application, they are directed to file submissions on this issue with the Tribunal by no later than February 13, 2015."

8In a subsequent CAD, dated February 28, 2015, at paragraph 14, I wrote the following:

"Since neither party made any submissions on this matter (the removal of the Litigation Guardian) and since the applicant demonstrated on the first day of hearing his capacity to continue the proceeding without a litigation guardian, I therefore remove the applicant's litigation guardian. I direct counsel to consider Noah Tsehai to be an applicant on his own behalf."

9There was no response from either party to this direction. Thereafter, the style of cause used for all communications, including several Interim Decisions, between the Tribunal and the applicant used the applicant's full name.

THE APPLICANT'S REQUEST FOR ORDER

10At the June 24, 2015 hearing, counsel for the applicant submitted the following reasons for the request:

• The applicant was a child while most of the issues in dispute occurred.
• Some of the information presented to the Tribunal about the applicant is highly sensitive that would not be made public under other circumstances.
• It does not make sense to treat him as an adult, when he is fully dependent on his mother.
• He defers to his mother in all matters, including decision-making.
• He is not competent or capable of instructing counsel and in fact has not done so. While the applicant was present at all discussions, counsel has been instructed by his mother. It is counsel's opinion that the applicant does not fully appreciate or understand the significance of the proceedings or of the potential outcome.
• Therefore, it makes sense and is appropriate if the style of cause were to revert to the applicant's initials and include his mother as his next friend.

11As is clear from the above points, there are two distinct requests. One is related to the anonymization of the applicant's name in all past and future decisions. The second one is a related request for the reinstatement of a litigation guardian for the applicant.

THE RESPONDENTS' RESPONSE TO THE REQUESTS

12Prior to addressing the anonymization request contained in the RFOP, counsel for the respondents expressed significant concern about the matter of who is and has been instructing counsel, if, as stated, the applicant is not competent to do so and has not been doing so. Counsel sought direction on whether these statements regarding the limited role of the applicant effectively invalidated the Tribunal process and whether the hearing could, in fact, continue under these circumstances.

13The respondents also opposed the applicant's request for anonymization for the reasons set out below.

REGARDING THE MATTER OF WHETHER THE APPLICANT REQUIRES A LITIGATION GUARDIAN

14I provided both parties with a copy of the Tribunal's Practice Direction on Litigation Guardians and a copy of Form 4B, which relates to Litigation Guardians on the grounds of Mental Incapacity.

15I directed counsel for the applicant to discuss with the applicant and the applicant's mother, the former Litigation Guardian for the applicant, whether it was their intent to ask the Tribunal to declare the applicant as being in need of a Litigation Guardian on the grounds of mental incapacity.

16Counsel for the applicant submitted that his earlier comments should not be taken as a "legal characterization" of the applicant as someone who is incapable of instructing counsel or of understanding the nature of the proceedings. He withdrew the request for the amended style of cause and any further references to a Litigation Guardian or Next Friend for the applicant.

17I agreed to accept this statement, namely that it would be inappropriate to have the applicant deemed mentally incompetent. I recognize that parties at the Tribunal often rely on the assistance and advice of family members, which does not invalidate their capacity to participate fully in the proceeding.

18I stated that I was satisfied that the hearing could continue under the circumstances.

REGARDING THE ANONYMIZATION REQUEST

The applicant's submissions

19The applicant acknowledged that an open and transparent justice system is considered to be a fundamental principle of a free and democratic society, which is why Tribunal hearings are open to the public and decisions are reported publicly.

20He submitted that at the same time, the Tribunal takes the privacy interests of parties seriously, as a result of which, children who are under the age of 18 are only identified by their initials. In exceptional circumstances, the Tribunal may also decide to protect the identity of parties by referring to them by initials.

21Counsel stated that this was such a case, since the information in front of the Tribunal includes a psycho-educational assessment and the applicant's identification as an exceptional student. He deemed this identification as highly stigmatizing, which in turn makes this an exceptional situation, calling for anonymization.

22Counsel cited three previous decisions to support his submissions. These are C.M v. York Region District School Board, 2009 HRTO 735; C.C. v. J.L. 2014 HRTO 1821 and M.C. v. London School of Business 2015 HRTO 636.

23Following the respondents' submissions opposing the anonymization request, counsel for the applicant submitted that this opposition was a further example of the reprisal alleged by the applicant.

The respondents' submissions

24The respondents acknowledged the Tribunal's process for protecting vulnerable children, by using initials instead of their names. They also acknowledged that when this Application was filed, the applicant was a minor and entitled to such protection.

25They submitted that he is now an adult, who is in control of this proceeding. Therefore, he does not need to be shielded from the impact of his own decisions. It is his own decision to pursue this Application.

26The respondents submitted that the applicant now wishes to hide behind a "veil of anonymity". At the same time, his Application cites three individual respondents in addition to the corporate respondent, who do not have the ability to be shielded from the outcome of this hearing, whatever it is.

27Further, the respondents submitted that they were ordered to disclose a great deal of information about other students, some of which was highly sensitive. While the students' names were not included, their photographs were provided, which meant that the applicant had access to personal information about many other individuals. These individuals have not been able to claim privacy interests to protect their information.

28Counsel for the respondents submitted that the Tribunal decisions cited by the applicant related to a minor in one case and to individuals with significant mental health issues in the other two cases. This Application does not meet either of those criteria.

29The respondents cited Han v. Rotman School of Management 2012 HRTO 2304. At paragraph 7, the presiding Vice-chair stated that "the applicant's request does not highlight any exceptional conditions of sensitivity or privacy seeking anonymity. Human rights applications often include personal information."

30For all of these reasons, the respondents submitted that the request for anonymization should be denied.

ANALYSIS AND DECISION

31The Tribunal's Rule 3.10 states that the Tribunal's hearings are open to the public, except when the Tribunal determines otherwise. The Tribunal's jurisprudence has held that anonymizing decisions should be limited to exceptional circumstances.

32Rule 3.11 goes on to state that the Tribunal may make an order to protect the confidentiality of personal sensitive information where it considers it appropriate to do so.

33In Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230, the presiding Vice-chair denied the applicant's request for anonymization, stating the following starting at paragraph 9:

"Although a publication ban is a discretionary remedy, it is an extraordinary measure that is used to ensure fairness of the hearing process and/or protect significant privacy interests. The importance of an open human rights process is expressed in the Tribunal's Rules of Procedure, which state that the Tribunal is committed to "a fair, open and accessible process". This is also reflected in Rule 3, which provides that the "Tribunal's hearings are open to the public", except when appropriate to protect the confidentiality of personal or sensitive information.

Publication bans and anonymization orders have been issued in certain types of human rights cases, such as those involving minors or highly personal or sensitive information, for example in sexual harassment complaints. The party seeking the publication ban bears the onus of proving that there is a real and substantial risk to the hearing's due process and/or deleterious implications to confidentiality: see for example, Hogan v. Ontario (Health and Long Term Care), 2003 HRTO 6, and C.M. v. York Region District School Board, 2009 HRTO 735. The Tribunal must be satisfied that the personal and public interests collate in favour of safeguarding privacy, thereby outweighing the principle of disclosure and the desirability of a transparent human rights process.

The concerns cited by the applicant in seeking to justify a partial publication ban are not persuasive in the circumstances of this Application. The details disclosed about the applicant's medical condition are not of the nature or degree of private or intimate information present in those cases where bans/anonymity have been ordered. Almost all disability human rights cases involve some disclosure of personal information surrounding an applicant's disability, or the basis for the perceived disability, in order to meet the definition in section 10 of the Code and establish that there is a Code-protected ground. The applicant did not articulate any unique concerns or issues of confidentiality surrounding her condition that necessitate special protection.

The Tribunal in C.M. v. York Region District School Board, supra, recognized that while stigma may be associated with human rights litigation, openness is a fundamental feature of the human rights system.

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 (sic) parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems. (para. 20)"

34I note that the applicant did not make submissions regarding the issue of anonymization following the January 28, 2015 CAD, or the February 28, 2015 CAD.

35As far as the current Application is concerned, the most significant allegations against the respondents focus on racial discrimination. It is not clear to me how responding to those allegations could be deemed to disclose highly sensitive information that would create a problem for the applicant.

36Of the other alleged grounds, disability, age and reprisal, only the ground of disability contains any potentially sensitive information. However, in order to claim disability as a Code-protected ground, it is inevitable that personal information would be disclosed.

37The applicant had been identified as an exceptional student by the respondent school board. His parents accepted the specific identification and had not appealed it, as was their right under the Education Act and relevant Regulations. The applicant's identification had been confirmed on an annual basis by the respondent school board's Identification Placement Review Committee without any disagreement from the applicant's parents. It is on the basis of that exceptionality identification that the applicant has claimed disability as one of the Code protected grounds underlying his allegations against the respondents.

38The respondents do not dispute that the applicant has a disability, as defined by the Code. When determining whether the applicant's rights had been violated, it is the actions of the respondents that will be considered rather than the applicant's specific disability. Therefore, there is no need for me to include any detailed medical or psychological information contained in the applicant's documentation in the final decision.

39As cited in Visic above, the details that may need to be disclosed about this applicant's disability are not in any case of the nature or degree of private or intimate information presented in those cases where anonymity has been ordered.

40While I do not accept the respondents' submission that the naming of individual respondents mitigates against this anonymization request, I also do not accept the applicant's submission that that statement should be interpreted as a further form of reprisal against the applicant.

41I find that the applicant's request does not present any exceptional conditions of sensitivity or privacy necessitating or justifying anonymity and the extraordinary step of anonymizing all decisions which would outweigh the public interest in a transparent human rights process.

ORDER

42The applicant's request for order to anonymize all past and future decisions is therefore denied.