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An open and transparent justice system has been called a fundamental principle of a free and democratic society.
This is an important reason why, in general, HRTO hearings are open to the public and written decisions, which include the parties' names and relevant evidence, are available to the public. All interim, final and reconsideration decisions are reported on the following legal reporter services: CanLII, LexisNexis and the Canadian Human Rights Reporter.
At the same time, the HRTO takes the privacy interest of persons appearing before it seriously. Children under the age of 18 are not identified in HRTO decisions and in rare cases the HRTO may make an order to protect personal or sensitive information of other individuals.
The HRTO's approach is set out in Rules 3.10 to 3.12 of its Rules of Procedure.
There are two circumstances in which initials will be used instead of names to anonymize the individuals mentioned in HRTO decisions.
Unless otherwise ordered, the HRTO will use initials in its decisions to identify children under age 18 and the next friend of a child under 18. Initials may also be used to identify other participants in the proceeding if necessary to protect the identity of a child (Rule 3.11.1).
In C.M. v. York Region District School Board ("C.M."), 2009 HRTO 735, the HRTO set out two important reasons why children under the age of 18 should be given special consideration:
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
The HRTO may also anonymize the name of a party or a participant to protect the confidentiality of personal or sensitive information where it considers it appropriate to do so (Rule 3.11). Such an order is only made in exceptional circumstances.
While all requests for anonymization are considered on a case-by-case basis, 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 anonymization.
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 public scrutiny 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.
The HRTO has granted a request for anonymization where there were specific threats to 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.
If a party or other participant wants to request that their initials, rather than their name, be used in an HRTO decision (a request for anonymization), they should make a Request for Order during Proceedings (RFOP) in accordance with the Rules of Procedure (Rule 19). The RFOP should set out the specific nature of the privacy protection sought (generally a request for anonymization) and include all submissions in support of the request, including supporting evidence and case law, if any.
Responding parties are entitled to provide their own submissions on any such request. The request will be decided by an adjudicator who will consider the submissions, the facts and the applicable law before making his or her decision.
A party may ask the HRTO to order that no one may publish certain information about the case (a publication ban), to seal its file so that some or all of the materials cannot be viewed by the public under any circumstances (a sealing order), or to exclude the public from some or all of the hearing (an exclusion order). These requests are rarely granted as they involve a major departure from the principle of open and transparent justice.