Access to Information and Protection of Privacy

When an applicant files an Application (Form 1) at the Human Rights Tribunal of Ontario (HRTO), this means a formal legal proceeding is started under the Human Rights Code (Code). The information provided by an applicant to the HRTO in their Application and any documents that are filed by the parties at the HRTO may contain sensitive or highly personal information about your circumstances. Other personal information may be admitted as evidence during a HRTO hearing. This may include medical documentation, personal emails or texts, photographs, or videos, and financial and/or other income information.

You should be aware that all this information can be requested and provided by the HRTO to a third party such as a member of the public or media organizations. This is because an open and transparent justice system, which includes the courts and administrative tribunals, such as the HRTO, is a fundamental principle of a free and democratic society. This is often referred to as the open court principle. The open court principle is why HRTO hearings are open to the public to attend and why HRTO decisions are available to the public through the CanLII legal decisions database.

Personal information in a HRTO case file may include the names of parties and witnesses, contact information, medical records, financial documents, or employment and education information. This information may also be referred to in the HRTO’s decisions in the case.

The HRTO recognizes that, in many applications before it, sensitive personal, health, financial or other information may be included in documents provided as part of the proceeding. Therefore, the HRTO can make exceptions to the openness of hearings and public access to case file information where there are very important privacy interests at stake. In some cases, the HRTO may order that certain information not be made public and be kept confidential to prevent members of the public and media from accessing it

Each case is different, and the specific facts of a case will determine whether the HRTO may order certain restrictions on public access to an applicant’s personal information. The HRTO may make the following types of confidentiality orders on their own or in combination:

• restrict public attendance at a HRTO hearing (“exclusion order”);
• restrict access to all or part of the documents filed with the HRTO (“sealing order”)
• restrict the publication of certain information (“publication ban order”); and
• anonymize an individual’s name or other identifying information in the HRTO’s decisions (“anonymization order”).

The HRTO has several publications you may wish to review to better understand how it deals with requests from a party for privacy, including its Access and Privacy Policy and Practice Direction on Anonymization.

Generally, all hearings and cases at the HRTO are publicly accessible in accordance with the rules set out in the Statutory Powers Procedure Act (SPPA) and the open court principle.

The open court principle assumes that public confidence in the integrity of the justice system and understanding of the administration of justice is best achieved by ensuring access, openness, and publicity.

More specifically, the open court principle is also intended to fulfil other important objectives, including maintaining an effective evidentiary process, promoting a shared public sense that the courts and tribunals operate with integrity and dispense justice, and to provide an on-going opportunity for the public to learn how the justice system operates and how the law being applied daily in the courts and tribunals may affect them.

The primacy of the open court principle is embedded in s. 2(b) of the Canadian Charter of Rights and Freedoms and was recently reaffirmed by the Superior Court of Justice in Toronto Star v. A.G. Ontario, 2018 ONSC 2586 (CanLII).

In some cases at the HRTO, the personal privacy interests of persons appearing before the HRTO outweighs the public interest in the open court principle. The HRTO’s general approach is to balance the public interest in freedom of expression and open justice against any significant consequences of identifying the person requesting a protection of their privacy.

The Tribunal Records Adjudication Act, 2019 (“TARA”) became the law in July 2019. The TARA’s purpose is to make available to the public all “adjudicative records” that the HRTO has in their possession for applications filed after on or after July 1, 2019. The HRTO also applies the same open justice principle to applications filed before July 1, 2019 when deciding about confidentiality orders.

The HRTO case files contain the adjudicative records related to a proceeding in accordance with theTARA. A HRTO case file may include:

• the Application, Response (Form 2) and Reply (Form 3);
• HRTO notices of mediation and hearing;
• The parties’ written submissions;
• documentary evidence (e.g. letters, e-mails, texts, photographs, medical records);
• HRTO exhibit list;
• recordings and transcripts of the HRTO proceedings (if any); and
• HRTO Case Assessments Directions (CAD), interim decisions, and final decisions.

The HRTO adjudicator’s personal notes, draft decisions, draft orders, and communications related to these drafts are not part of a HRTO case file and are not adjudicative records under the TARA.

Finally, documents relating to HRTO mediation and settlement discussions are not an adjudicative record within the TARA and are exempt from disclosure. Materials created solely for the purposes of mediation or settlement discussions are confidential and are not contained in a HRTO case file.

HRTO adjudicative records may be accessed by third parties if the organization or person making the request provides sufficient identifying case file information. Requests must identify the specific record and related proceeding HRTO staff cannot conduct research on behalf of requesters. The HRTO cannot extract, compile or aggregate data from case files.

The parties to an ongoing proceeding should contact the Registrar’s Office at the HRTO where the matter is being held for questions relating access to records in their case files at HRTO.Registrar@ontario.ca

Other questions or concerns about accessing records may be directed to Access.TO-TDO@ontario.ca.

A confidentiality order is an HRTO decision that an adjudicative record or portion of an adjudicative record be treated as confidential and that it not be disclosed to the public. These requests are rarely granted by the HRTO because they involve a major departure from the open court principle.

A party, an affected person, or the HRTO itself may request a confidentiality order to prevent disclosure (sections 2(2) and 2(3) of the TARA).

Requests for confidentiality orders should be made as early as possible. In deciding whether to make a confidentiality order, the HRTO will consider whether:

• matters involving public security may be disclosed; or
• intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.

In NK v. Botuik, 2020 HRTO 345 (CanLII), the HRTO ordered that all pleadings and documents in the proceeding be sealed and not be accessible to the public or distributed to any person (except the parties and their legal counsel) due to the exceptionally sensitive and personal matters involved in the case.

The HRTO found such an order was necessary to prevent the exposure of exceptionally personal information and that it would constitute a serious risk to the administration of justice to make it publicly accessible and found the applicant’s need for the confidentiality order outweighed the rights and interests of the respondent and the public.

Additional information about confidentiality orders, including the other types of orders available and the process for making a request under the TARA or under the HRTO Rules can be found on the Tribunals Ontario website and in the HRTO Rules of Procedure and Practice Directions.

In the life of a proceeding, the HRTO may issue many written decisions, which will include the parties’ names, case information and relevant evidence. These decisions are available to the public through CanLII.

An anonymization order means that only initials will be used instead of a person’s full name throughout the HRTO decision. For example, an applicant named John Anderson could be referred to only as “J.A.” in the HRTO proceeding. See the HRTO’s Practice Direction on Anonymization of HRTO Decisions.

There are two circumstances where the HRTO may order anonymization: (1) to protect the identify of children; and (2) in exceptional circumstances to protect the person’s privacy in relation to highly sensitive personal information arising in the case.

To protect the identity of children, the HRTO uses initials in its decisions to identify children under age eighteen (18) and to identify the litigation guardian of a child under 18. Initials may also be used to identify other participants in the proceeding if this is necessary to protect the identity of a child.

In C.M. v. York Region District School Board (“C.M.”), 2009 HRTO 735, the HRTO set out two reasons for giving special privacy consideration to children under the age of 18. First children’s best interests and recognition of their vulnerability are fundamental values in the legal system. Second, unlike adult litigants, a child does not make decisions about their HRTO application. What evidence to call, which arguments to make and whether to settle the case are decisions usually made on a child’s behalf by a litigation guardian.

The HRTO may also order anonymization when it concludes there are exceptional circumstances that justify protecting the confidentiality of personal or sensitive information.. The HRTO’s approach is to balance the public interest in the open court principle against any significant consequences of identifying the person requesting anonymization.

In Mancebo-Munoz v. NCO Financial Services Inc., 2013 HRTO 974, the HRTO noted that HRTO applications often include personal information and therefore exceptional conditions of sensitivity or privacy are required. The HRTO emphasized the open court system is a fundamental principle of a free and democratic society and that, without good reasons for doing so, parties should not make or defend allegations from behind a veil of anonymity.

The HRTO has granted requests for anonymization, for example, where there were specific threats to a party’s personal safety, where 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.

A sealing order is an HRTO order that the HRTO seal its file so that some or all the materials cannot be viewed by the public under any circumstances. These requests are rarely granted by the HRTO as they involve a major departure from the open court principle.

In NK v. Botuik, 2020 HRTO 345 (CanLII) the HRTO ordered that all pleadings and documents in the HRTO file be sealed. In JKB v. Regional Municipality of Peel Police Services Board, 2019 HRTO 1274 (CanLII), the HRTO granted a partial sealing order to remove key identifying information of the child’s and the child’s litigation guardian (e.g. address, photographs, date of birth, names of other family members) from the adjudicative records.

In LG v. Ottawa Police Services Board, 2020 HRTO 178 (CanLII), on the other hand, the applicant’s request for a sealing order was denied.

A publication ban is an HRTO order preventing the publication of certain information in a particular case. These requests are rarely granted by the HRTO as they involve a major departure from the open court principle.

The HRTO’s default position is that HRTO applications are public proceedings and a publication ban is an extraordinary action that infringes on fundamental rights such as the freedom of expression of the parties and others, including the media. The fact that there may be some personal embarrassment or financial prejudice to a party or witness is generally not a valid basis for a publication ban order.

The party seeking a publication ban bears the onus of proving that; (1) the ban is necessary in order to prevent a real and substantial risk to the fairness of the hearing; (2) reasonably available alternative measures would not prevent the risk; (3) the request relates to an important objective that cannot be achieved through another means; and (4) the proposed ban is as limited as possible and there is a proportionality between the positive and the negative effects of the ban. See Dagenais v. Canadian Broadcasting Corp, 1994 CanLII 39 (SCC), [1994] 3 S.C.R. 835.

In JKB v. Regional Municipality of Peel Police Services Board, 2019 HRTO 1274 (CanLII), the HRTO granted a request for a partial publication ban to prevent anyone from identifying the applicant or her litigation guardian . The HRTO concluded that, given the age of the applicant, her vulnerability and the notoriety of the case, should her name be associated with the incidents in this application, there was a real risk that she would be negatively impacted by the disclosure of her medical and psychological information or by virtue of the violation of her privacy rights,

Other examples of how the HRTO has decided publication ban requests include Bell v. Perth Avenue Housing Co-operative, 2020 HRTO 807 (CanLII), Cybulski v. Canadian Corps of Commissionaires, Ottawa Division, 2013 HRTO 1773 (CanLII), L.G. v. Ottawa Police Services Board, 2020 HRTO 178 (CanLII) and Misetich v. Value Village Stores Inc., 2016 HRTO 1641.

An exclusion order is a HRTO order to exclude the public from all, or some, of a HRTO hearing. These requests are rarely granted by the HRTO as they involve a major departure from the open court principle. It is a well-established that there is a public interest in transparent legal processes and that human rights hearings are intended to be open proceedings.

In LG v. Ottawa Police Services Board, 2020 HRTO 178 (CanLII), the applicant’s request for a closed HRTO hearing was denied.

In AB v. Ottawa Catholic School Board, 2020 HRTO 167 (CanLII), the HRTO declined to order that the hearing be closed to the public, noting that this extraordinary measure was often used in relation to child protection cases, which were not the circumstances in this case. However, the HRTO did allow the request for anonymization to ensure the applicant’s identity was not disclosed in the publicly available decisions about the case.

If a party or other participant wants to request one or more of an anonymization, publication ban, sealing order or exclusion order, they should make a Request for Order During Proceedings (RODP) in accordance with HRTORule 19.or more information about RODP, see the Centre’s self help guide: Requests for Orders During Proceedings.

The request should set out the specific nature of the privacy protection sought (e.g. a request for anonymization) and include all submissions in support of the request, including all supporting evidence and case law.

A responding party is entitled to provide their own submissions on any such request. The request will be decided by the HRTO who will consider the submissions, the facts, and the applicable law before deciding.

Under section 45.7 of the Code, the HRTO may, at the request of a party or on its own initiative, reconsider its decisions in accordance with HRTO Rule 26. Reconsideration is a discretionary remedy and while the HRTO has the jurisdiction to reopen and reconsider its own decisions, but it is not obliged to do so.

Whether a reconsideration will be granted by the HRTO is always decided on a case by case basis but generally the HRTO is unlikely to reconsider its interim decisions about an anonymization, publication ban, sealing or exclusion order absent some compelling or extraordinary reason to do so. See, for example, Zakharia v. London Health Sciences Centre, 2016 HRTO 1296 (CanLII).

In another case, however, C.C. v. [….] Restaurant, 2014 HRTO 1821 (CanLII), the applicants did not request anonymization in advance of the hearing, during the hearing or in their post-hearing submissions but only after the HRTO decision was made. Nevertheless, the HRTO found it to be appropriate, in the unique circumstances of the case, to anonymize the identities of both the applicant and the organizational respondent