HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Sonya Zakharia
Applicant
-and-
London Health Sciences Centre
Respondent
A N D B E T W E E N:
Sonya Zakharia
Applicant
-and-
London Health Sciences Centre and Angela Hodgson-Burtch
Respondents
RECONSIDERATION DECISION
Adjudicator: Dawn J. Kershaw
Indexed as: Zakharia v. London Health Sciences Centre
WRITTEN SUBMISSIONS
Sonya Zakharia, Applicant
Self-represented
Introduction
1On April 29, 2015, the Tribunal issued its Decision, 2015 HRTO 546, finding the applicant had abandoned the Applications. The applicant failed to respond to the Tribunal’s March 3, 2015 e-mail request to the parties that they file the Form 25 Confirmation of Settlement, failing which the Applications may be dismissed as abandoned.
2On June 23, 2016, the applicant filed a Request for Reconsideration asking that her name be anonymized on all the applications.
THE REQUEST FOR RECONSIDERATION
3The applicant’s reasons for requesting reconsideration is:
Other factors exist that outweigh the public interest in the finality of Tribunal decisions.
4The applicant relies on Rule 26.5(d) in the Tribunal’s Rules of Procedure and submits that any public record of her Applications should be anonymized because she is having extreme difficulty finding and maintaining employment in her field. The applicant alleges this is due to the Decision appearing on Google Search and. She submits she settled the Applications in part due to her understanding there would be no record of her complaints.
the law
5The Tribunal has considered the issue of anonymization after a decision has been issued. See: C.C. v. […] Restaurant, 2014 HRTO 1821 (“C.C.”). 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. Since the applicant in this case filed a Form 20 Request for Reconsideration, I see no reason to depart from the reasoning in C.C. and have considered the applicant’s request on that basis. See also: O.L. v. Sun Media Corporation, 2015 HRTO 857.
6Under 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.
(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.
7The Tribunal has issued Rules of Procedure, 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, last amended April 2014). 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.
8The 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.
9As is evident from the above, reconsideration is a discretionary remedy. That is, while the Tribunal has the jurisdiction to reopen and reconsider its own decisions, it is not obliged to do so. In this case, the applicant is asking that the Tribunal consider an issue that was not raised at the first instance by the Tribunal.
decision and analysis
10The 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, will likely 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.
14The applicant’s request is not as the result of the disclosure of any particularly sensitive information or highly sensitive medical information. In my view, the fact that there is a record of the Decisions on Google Search and on is not sufficient to grant a request to anonymize absent other factors.
15The applicant provided no information to substantiate her belief that the existence of these Interim Decisions and the final Decision are the reason she is not able to find or maintain employment. As such, she has not demonstrated vulnerability or potential harm.
16As such, the applicant’s request to anonymize the Interim Decisions and final Decision in these Applications is denied.
Dated at Toronto, this 5th day of October, 2016.
“Signed By”
Dawn J. Kershaw
Vice-chair