Open courts and freedom of expression are fundamental principles of a free and democratic society. In accordance with these principles, Human Rights Tribunal of Ontario (“HRTO”) hearings and decisions that include parties’ names and evidence are generally public. The HRTO has emphasized the importance of public scrutiny when respondents are found to have violated human rights or when accusations of discrimination are not upheld.

However, HRTO proceedings involving allegations of discrimination in employment based on sexual solicitation, sexual harassment, and sexual assault frequently raise personal or sensitive issues and have given rise to many anonymization and publication ban requests. These requests have required the HRTO to balance parties’ privacy interests against the public interest in freedom of expression and open courts. This article provides a review of how the HRTO has determined such requests.

Anonymization

To grant a party’s anonymization request (i.e.: use initials instead of the party’s name), the HRTO must be satisfied that the interest of safeguarding personal privacy in a case outweighs the public interest in a transparent human rights proceeding.

The HRTO has granted anonymization requests when sensitive medical and personal information would be disclosed in a proceeding. To be consistent with Human Rights Code values, it has also granted such requests if parties could suffer significant stigma. If the HRTO did not protect applicants’ identities, they could be less willing to pursue allegations of sexual harassment and assault.

On the other hand, the HRTO has denied anonymization requests when it found the requesting party had no privacy interests or there were no real and substantial risks to the requesting party’s privacy interests.

In KG v. 2394069 Ontario Ltd. o/a Pumpernickel’s Credit Valley, 2019 HRTO 1441, for example, the applicant alleged the personal respondent made sexually explicit comments, offered her payment for sexual favours, and sexually assaulted her. The respondents sought anonymization. They argued:

  • the applicant’s allegations were untested;
  • being falsely accused of sexual harassment and sexual assault was stigmatizing and caused reputational damage; and
  • the personal respondent’s privacy and dignity interests were engaged due to the explicit and humiliating allegations. Also, he could be identified and his home address could be found.

The HRTO denied their requests, stating that reputational interests were insufficient to warrant anonymization. Corporations had no privacy interests. As well, the personal respondent was found not to have raised particularly private or sensitive circumstances.

Publication bans

Publication bans that prohibit disclosing information from HRTO proceedings in publications or broadcasts restrict public access to information about these proceedings.

In Dagenais v. Canadian Broadcasting Corp., [1994] 3 SCR 835 and R. v. Mentuck, 2001 SCC 76, the Supreme Court established that a publication ban should only be ordered when:

  1. it was necessary to prevent a serious risk to the proper administration of justice because reasonable alternative measures would not suffice; and
  1. the salutary effects of the publication ban outweighed the deleterious effects on the rights and interests of the parties and the public, including the right to free expression, the right to a fair and public trial, and the efficacy of the administration of justice.

In CAW – Canada v. Presteve Foods, 2010 HRTO 796, the applicants sought anonymization and a publication ban on the names of claimants alleging sexual assault and sexual harassment. The applicants argued stigma could result from publication. The HRTO determined the relief sought was appropriate. It noted that the same relief for the applicants was ordered in the criminal trial of the personal respondent, who had been charged with counts of sexual assault, and it should be mirrored in the HRTO process.

The respondents also sought to anonymize and prohibit publication of their names. The corporate respondent argued potential economic harm from publicity. The personal respondent asserted publication of his name could affect his right to a fair trial.  The HRTO denied the relief sought by the respondents. The corporation’s economic interests did not outweigh the public interest in open justice and freedom of expression. Additionally, corporations did not have privacy interests. Regarding the individual respondent, the HRTO noted the criminal court did not issue a publication ban on his identity and concluded anonymity was unnecessary to ensure a fair trial.

Conclusion

HRTO applications alleging discrimination in employment based on sexual solicitation, sexual harassment, and sexual assault do not automatically trigger anonymization or publication bans. Employers that are considering seeking anonymization or publication bans should know the HRTO has held corporate employers do not have privacy interests to protect in the first place. The HRTO has also dismissed personal respondents’ anonymization or publication ban requests even when their privacy interests were engaged. Exceptional circumstances have to exist for such orders to be granted, such as disclosure of sensitive medical and personal information or publication impacting a person’s right to a fair trial.

Samantha Wu‘s civil litigation practice includes insurance defence under specialty line coverages.