E.K. v. 2379458 Ontario Ltd., 2017 HRTO 1217

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

E.K.

Applicant

-and-

2379458 Ontario Ltd., Shahriar Heshmat,

MTY Tiki Ming Enterprises Inc. and MTY Food Group Inc.

Respondents

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: September 18, 2017

Citation: 2017 HRTO 1217

Indexed as: E.K. v. 2379458 Ontario Ltd.

WRITTEN SUBMISSIONS

E.K., Applicant

Emily Shepard, Counsel

Introduction

1This Application alleges discrimination with respect to employment sex and sexual solicitation or advances contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant filed two Form 10 Requests for an Order During Proceedings on August 10, 2017. She asks for the following:

a. That the Tribunal order the respondents, 2379458 Ontario Ltd. and Shahriar Heshmat (referred to as "the Personal Respondent” and “Franchise") to provide their arguably relevant documents, which were due on July 5, 2017; and

b. that the Tribunal anonymize all decisions made in this matter that are provided to the parties and included on the Canadian Legal Information Institute site.

3No respondent filed a Form 11 Response to a Request for an Order During Proceedings to either of the applicant’s requests.

respondents’ document production

4The parties’ were directed to provide their arguably relevant documents to each other by July 5, 2017. The personal respondent and Franchise have failed to do so.

5Other than their lawyer apparently explaining to the applicant that the client was out of the country when she requested their arguably relevant documents, the personal respondent and the Franchise have provided no explanation for why they have not complied with the disclosure requirements set out in the Notice of Hearing.

DIRECTIONS TO PARTIES

6By no later than October 4, 2017, the personal respondent and Franchise must deliver to the applicant their arguably relevant documents.

7By October 18, 2017, all parties must deliver to the applicant and file with the Tribunal (1) confirmation of delivery of their arguably relevant documents to the applicant; (2) a list and copy of the documents they intend to rely upon at the hearing; (3) a list of their witnesses; and (4) a brief statement describing what their witnesses will say when they testify.

8If the personal respondent and the Franchise do not provide the above-noted materials by the deadlines set out in paragraphs 5 & 6, the Tribunal may take any or all of the steps set out in Rule 5 of the Tribunal’s Rules of Procedure, including not permitting these respondents to call any witnesses or present any documentary evidence at the hearing.

request to anonymize

9The applicant submits the proceeding should be anonymized to protect the confidentiality of personal and sensitive information contained in the Interim Order, 2017 HRTO 1010, and any other order that is made in this matter that is sent to the parties and/or appears on.

10The applicant alleges in detail that she experienced sexual assault and harassment in the workplace, and reported this assault and harassment to the franchisor, but nothing was done. In addition, she submits she is a survivor of childhood sexual assault, and has mental health issues as a result of the sexual assaults and harassment that she alleges she experienced at work.

decision and Analysis

11The Tribunal grants the applicant’s request to anonymize her name by using her first and last initial in this proceeding, including in Interim Decision, 2017 HRTO 1010, and in this Interim Decision and in any future decisions.

12The Tribunal’s Practice Direction on Anonymization of HRTO Decisions (Effective April 2014) provides that the Tribunal may anonymize the name of a party to protect the confidentiality of personal or sensitive information where it is appropriate to do so. However, such an order is only made in exceptional circumstances.

13Rule 3.11 of the Rules of Procedure states:

The Tribunal may make an order to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so.

14The relevant principles in considering requests for anonymization and publication bans are set out in C.M v. York Region District School Board, 2009 HRTO 735 (“C.M.”). In C.M. the Tribunal emphasized the importance of an open justice system and stated that without good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity. See also: Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230.

15In some cases where there are allegations of sexual assault and sexual harassment, the Tribunal has concluded that there are good reasons for anonymizing a proceeding. For example, in CAW-Canada v. Presteve Foods, 2010 HRTO 796, the Tribunal concluded that anonymization of the applicants’ names was justified given the stigma associated with the allegations. The Tribunal concluded at para. 5:

Balancing the public interest in freedom of expression and open justice against the significant stigma to the claimants raised by the facts of this case that include alleged sexual assaults, I find that an order of the type requested is appropriate and justified.

16In A.D. v. 2169287 Ontario Inc., 2014 HRTO 297, the applicant also alleged sexual assault in the workplace. The Tribunal granted the applicant’s request for anonymity, finding that the stigma to the applicant of sexual assault allegations outweighed the Tribunal’s interest in an open proceeding (para. 7, see also G.G. v. 1489024 Ontario Ltd., 2012 HRTO 824 at para. 9).

17The Tribunal also anonymized the applicant’s identity in a case in which the applicant alleged sexual harassment. See, S.S. v. Taylor, 2012 HRTO 1839. The Tribunal stated that granting anonymization in this case would be consistent with the values of the Code:

I am satisfied that the proposed anonymization relates to an important objective. If the Tribunal did not protect the identity of applicants in proceedings of such a personal and intimate nature, they may be less willing to pursue allegations of sexual harassment in such circumstances. As the Tribunal indicated in XY, supra, such an outcome would be inconsistent with the very purposes of the Code (para. 43).

18In my view, the sexual allegations in this case meet the test of exceptional circumstances set out in the Tribunal’s Practice Direction on Anonymization of HRTO Decisions, particularly because of the sexual harassment combined with the applicant’s history of sexual abuse and her resultant mental health issues. See, for example, A.M. v. Human Rights Tribunal of Ontario, 2017 HRTO 107 at paras. 13-14; A.B. v. University of Waterloo, 2015 HRTO 1126 at para. 4.; M.C. v. London School of Business, 2015 HRTO 635 at para. 88; A.G. v. Bombardier Aerospace Inc., 2014 HRTO 1164 at para. 7; and D.G. v. Centre for Addiction and Mental Health, 2014 HRTO 1336 at para. 6.

order

19The applicant’s request to anonymize her name is granted, and the title of proceedings has been amended accordingly.

20The Tribunal also orders retroactive anonymization of its decision in 2017 HRTO 1010, which shall likewise be amended to refer to the applicant by her initials only.