A.B. v. Brampton (City), 2016 HRTO 46

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

A.B.

Applicant

-and-

The Corporation of the City of Brampton

Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: January 12, 2016

Citation: 2016 HRTO 46

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

WRITTEN SUBMISSIONS

A.B., Applicant

Jean-Alexandre De Bousquet, Counsel

The Corporation of the City of Brampton, Respondent

Susan Crawford, Counsel

INTRODUCTION

1This Interim Decision addresses the applicant’s request that he be provided with anonymity in the Tribunal process.

2On December 17, 2015, the applicant submitted a Request for Order During Proceedings (“Request”) seeking to have the proceedings in the Application anonymized. The applicant submits that the nature of his disabilities are particularly stigmatizing and that he is particularly vulnerable because the long-term nature of his disability may lead future employers to believe that he could not maintain a full-time schedule and may lead to suspicions that he could not properly and diligently engage in his profession.

3On December 23, 2015, the respondent submitted its response to the applicant’s Request. The respondent objects to this request on the basis that the nature and duration of the applicant’s disability do not meet the threshold of exceptional circumstances involving very sensitive information to necessitate anonymity. The respondent also submits that the Tribunal has in the past decided that the fact that future employers could become aware of the applicant’s disability is not sufficient reason to grant anonymity. The applicant lives in a large city rather than a small centre where he could be more readily identified.

DECISION

4It is a well-established principle that there is a public interest in transparent legal processes and that, in accordance with Rule 3.10 of the Tribunal’s Rules of Procedure, human rights hearings are intended to be open proceedings. The Tribunal’s jurisprudence has held that anonymity or publication bans should be limited to exceptional circumstances: Marakkaparambil v. Ontario (Health and Long-Term Care), 2007 HRTO 24; Lazarevic v. York University, 2010 HRTO 1601.

5In Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230 (“Visic”), the Tribunal discussed the various principles that require consideration when dealing with requests for anonymity and publication bans of parties’ identities. The Tribunal held at paras. 9 and 10:

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.

6I find that the facts in the Application do not present any exceptional circumstances of sensitivity or privacy necessitating anonymity. Human rights applications often include personal information. The information that is to be presented in the Application about the applicant’s disability is not of the nature or degree of private or intimate information present in those cases where anonymity has previously been ordered. As recognized in Visic, most disability cases involve some disclosure of personal information about 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. In writing decisions during the proceeding, the Tribunal can take measures to ensure to reveal only the necessary private information.

7I find that the applicant has not provided any unique concerns or issues of privacy that justify the extraordinary measure of anonymization. Accordingly, the applicant’s request is denied.