DIVISIONAL COURT FILE NO.: 107/22
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Isaac Bon Hillier and Maritza Ortiz, (Moving Party/Appellants in Appeal)
AND:
Medallion Corporation, (Responding Party/Respondent in Appeal)
AND:
Landlord and Tenant Board, Legal Services Branch, (Responding Party)
BEFORE: O’Brien J.
COUNSEL: I. B. Hillier and M. Ortiz, Self-represented Appellants M. W. Melchers, for the Responding Party/Respondent in Appeal V. Crystal, for the Landlord and Tenant Board
HEARD: In writing (in Toronto)
ENDORSEMENT
Overview
1The moving parties, tenants Isaac Bon Hillier and Maritza Ortiz (“Tenants”), appeal from a decision of the Landlord and Tenant Board (“LTB” or “Board”) granting the application for eviction of the landlord, Medallion Corporation (“Landlord”). The Tenants have indicated they wish to bring a motion in this Court permitting them to be referred to by pseudonyms.
2Although I am advised a schedule was set for the exchange of motion materials, the moving parties, who are representing themselves, have not filed a notice of motion nor an affidavit. They have only filed the authorities they rely on in support of their arguments regarding privacy and the open court principle.
3However, the Landlord has filed a motion record, which provided the Court with the relevant LTB decisions. In addition, the LTB filed a factum setting out the relevant statutory and procedural context, as well as the relevant legal principles. On review of these materials, I find the responding parties had notice of the Tenants’ request that they be referred to by pseudonyms. Therefore, I will decide the Tenants’ request that pseudonyms be used in place of their names on the material provided.
Background
4The Tenants rent a residential unit on Sherbourne Street in Toronto from the Landlord. On February 9, 2022, the LTB ordered the termination of the tenancy (the “Order”). The LTB found that the Tenants had been having unwanted and inappropriate conversations with other tenants regarding the COVID-19 pandemic and their personal choice on vaccinations and masks. The LTB also found that the Tenants were provided an opportunity to refrain from having these conversations. Specifically, the Landlord first served them with a notice of termination that was voidable in December 2020 and only served the non-voidable notice in April 2021 when the Tenants’ conduct resumed. The LTB declined to grant relief from eviction in all the circumstances.
5On February 17, 2022, the LTB issued a Review Order confirming the original Order.
6In the Review Order, the LTB member noted that the Tenants had been asserting a right to be referred to as “Chad” and “Stacy” without providing any evidence that these were their legal names and without seeking an order from the Board authorizing this practice. The Review Order reproduced a portion from an endorsement of the LTB dated October 6, 2021, in which the Board stated that “[a]ll orders and correspondence from the Board will use the Tenants’ names as they appear on the application until there is an order or direction to do otherwise.” I am not aware of any material demonstrating that the Tenants ever applied for an order requiring that the Board refer to them by pseudonyms.
7For the reasons that follow, the Tenants’ request for pseudonyms to be used in place of their names in this court proceeding is dismissed.
Analysis
8Normally parties are referred to by name in the title of court proceedings, in accordance with the open court principle and rr. 14.06(1) and 61.04(2) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
9Both the Tenants and the Board cited the Supreme Court of Canada’s recent decision in Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361 (“Sherman”), which sets out the principles governing the open court principle. In that case, the Supreme Court reaffirmed at para. 30 that “[c]ourt openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of our democracy.” Concealing the name of a party, whether by a pseudonym or otherwise, goes against the open court principle because it limits the public’s right to receive information about court proceedings: Canadian Broadcasting Corp. v. R., 2010 ONCA 726, 102 O.R. (3d) 673, at para. 24. To overcome the “strong presumption” of openness, the party asking the court to exercise its discretion to limit public access to the courts must establish the following, per para. 38 of Sherman:
(1) court openness poses a serious risk to an important public interest;
(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and
(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.
10If a privacy interest is alleged, it must be shown that “the information in question strikes at what is sometimes said to be the core identity of the individual concerned: information so sensitive that its dissemination could be an affront to dignity that the public would not tolerate, even in service of open proceedings.” Further, “[n]either the sensibilities of individuals nor the fact that openness is disadvantageous, embarrassing or distressing to certain individuals will generally on their own warrant interference with court openness”: Sherman, at paras. 34, 63.
11While a serious risk to an important public interest may be established either by direct evidence or on the basis of logical inferences, the “inference must still be grounded in objective circumstantial facts that reasonably allow the finding to be made inferentially. Where the inference cannot reasonably be drawn from the circumstances, it amounts to speculation”: Sherman, at para. 97.
12In this case, the Tenants fail at the first stage of the test to overcome the presumption of openness. They have not demonstrated a serious risk to an important public interest. They have not filed any evidence nor made submissions arising from the material before the LTB. I also am not able to infer such a risk from the material before the LTB. The Board’s findings in the Order and Review Order provide very little information of any kind about the Tenants. The Order only references in a general way how Mr. Hillier had “preach[ed]” and spoken inappropriately to other tenants regarding their personal beliefs related to the COVID-19 pandemic.
13The Landlord’s notices to the Tenants, which were before the Board, provide more detail and do not paint their conduct in a positive light. They allege that the Tenants engaged in behaviour such as calling a person a “German Nazi’s foot soldier”; yelling and swearing at staff using offensive language, including referring to them as the “Ku Klux Klan”; and mocking and yelling obscenities at another tenant for wearing a face mask.
14In spite of this unflattering portrait, I am not aware of anything in the material that would lead me to conclude that the information about the Tenants constitutes information so sensitive it is an affront to dignity of the type the public would not tolerate. Indeed, it does not appear to be sensitive private information at all, particularly as the Tenants’ alleged conduct occurred in public spaces in the residential complex.
15The Tenants therefore have not demonstrated that the Court should use pseudonyms rather than their names in this proceeding.
16Finally, I note that while there is a presumption that the media will be given notice of any motion for an order restricting court openness, the courts have discretion to make an order dispensing with notice pursuant to the Consolidated Provincial Practice Direction. I do not have any material to suggest the Tenants provided notice to the media of this motion. However, I am exercising my discretion to dispense with this requirement. The Tenants did not file proper motion materials, so their request is entirely unspecified. They have not pointed to any basis for using pseudonyms in place of their names, other than the general principle of open courts referred to in the cases they have cited. There is also no information in the material before the Board by which I would infer a basis for pseudonyms to be used in the specific circumstances of this case. In view of this, and given that I am dismissing the motion, the media need not be notified of it.
Disposition
17The motion is dismissed. The Board has indicated it does not seek costs. The Landlord has neither requested costs nor filed a Bill of Costs. Therefore, no costs are ordered.
Date: October 24, 2022