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An open and transparent justice system has been called a fundamental principle of a free and democratic society. For this reason, Human Rights Tribunal of Ontario (HRTO) hearings are generally open to the public, and written decisions – containing the names of parties and reference to relevant evidence – are publicly accessible. All interim, final and reconsideration decisions are published through legal reporting services such as CanLII, LexisNexis and the Canadian Human Rights Reporter.
At the same time, the HRTO is committed to protecting the privacy of individuals involved in its proceedings in accordance with applicable laws and principles. For example, children under the age of 18 are not identified in decisions and, in rare and exceptional cases, the HRTO may issue a confidentiality order to protect personal or sensitive information of individuals.
If you believe you require a confidentiality order, you can make a request at the time of filing an application.
The HRTO's approach is set out in Rules 3.10 to 3.12 of its Rules of Procedure.
There are two main circumstances in which the HRTO may use initials instead of names to anonymize the individuals in its decisions.
Under Rule 3.11.1, the HRTO will use initials to identify children under the age of 18, the litigation guardian of a child (i.e., the adult representing them), or other participants as necessary to protect the child’s identity.
In C.M. v. York Region District School Board ("C.M."), 2009 HRTO 735, the HRTO emphasized two key reasons for this approach:
First, attention to children's best interests and recognition of their vulnerability are, like openness, fundamental values in our legal system... Second, unlike adult litigants, a child does not make decisions for herself or himself about the Application. The decisions to commence it, what evidence to call and arguments to make, and whether to settle, to name just a few, are usually made on his or her behalf by a parent or guardian.
Under Rule 3.11, the HRTO may anonymize an adult party or participant's name to protect highly sensitive or personal information, but only in exceptional circumstances. Each request is assessed individually balancing the public interest in open justice and freedom of expression against the potential harm or consequence of identifying the individual.
In Mancebo-Munoz v. NCO Financial Services Inc., 2013 HRTO 974, the HRTO noted that "human rights applications often include personal information" and thus it will look for "exceptional conditions of sensitivity or privacy necessitating anonymity" before granting such an order. Some of the principles underlying this approach were discussed in C.M. above:
...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 publiscrutiny 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 system depends, in part, upon knowing how the Tribunal addresses the particularly parties before it. Openness and free expression are of fundamental importance in our legal and human rights systems.
Examples where the HRTO has granted a request for anonymization in exceptional circumstances include: threats to personal safety, parallel criminal proceedings arising from the same facts, particularly those involving an alleged sexual assault, and highly sensitive medical information or acute mental health crisis. However, each request will be assessed on a case-by-case basis.
If a party or other participant wishes to have their initials instead of their full name in an HRTO decision, they must submit a Form 10 Request for Order During Proceedings (the “RFOP”) in accordance with Rule 19.
The RFOP should clearly outline the specific privacy protection sought being requested and include all supporting submissions, including relevant evidence and case law, if available. Other parties involved in the proceeding have the right to respond with their own submissions by submitting a Form 11 Response to Request for Order During Proceeding. An adjudicator will consider the submissions, facts and applicable law before making a decision.
Please note that anonymization of a decision or order does not seal or otherwise protect individuals’ names that are contained in the HRTO’s record, and this information is publicly available in the absence of a confidentiality order restricting access to the information.
In certain circumstances, a party may request additional privacy measures by way of a confidentiality order, such as: a publication ban (restricting public disclosure of specific case information), a sealing order (preventing public access to certain materials), or an exclusion order (excluding the public from part or all of the hearing).
These requests represent a departure from the principles of open and transparent justice and are only granted in exceptional circumstances.
When requesting a confidentiality order, the requesting party’s submissions should address the criteria outlined by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25 (CanLII), [2021] 2 SCR 75. Restrictions on access to records should only be ordered where the requester establishes that: