A former part-time faculty member at Algoma University has lost his bid to keep his name and medical information private in a human rights complaint against the school and a number of other individuals.
The case, filed on Sept. 13, 2019, involves allegations of discrimination based on multiple grounds including disability, race, and marital status against Algoma University. The applicant sought to anonymize his name and enforce a publication ban on his medical records, fearing stigma and future employment challenges.
His supplementary submissions, significantly more extensive than the initial request, did not convince the Tribunal of the necessity for such measures.
The Tribunal, referencing the open court principle foundational to Canadian legal proceedings, reiterated the need for public access except under exceptional circumstances.
Three-pronged test
Citing the Supreme Court’s decision in Sherman Estate v. Donovan, 2021, the Tribunal emphasized that any restriction on this principle must meet a stringent three-pronged test, which the applicant failed to satisfy.
Serious risk to an important public interest: The person seeking to limit court openness must establish that the openness poses a serious risk to an important public interest. This step requires identifying a specific, significant interest that could be jeopardized by the openness of the court.
Necessity of the order to prevent the risk: The applicant must demonstrate that the order they are requesting is necessary to prevent the serious risk to the identified interest. This means showing that there are no reasonable alternative measures available that would adequately mitigate the risk.
Benefits of the order outweigh negative effects (proportionality): Finally, it must be proven that, on balance, the benefits of the order in protecting the identified interest outweigh its negative effects on the openness of the court. This is a proportionality test, where the impacts of restricting openness are weighed against the importance of the public interest being protected.
Only if all three of these prerequisites are met can a court or tribunal justifiably order a limitation on the presumption of open court proceedings, such as a sealing order, a publication ban, or excluding the public from a hearing.
The Tribunal’s decision was informed by its rules and past cases like Visic v. Elia Association Professional Corporation, 2011, and J.M. v. St. Joseph’s Health Care, 2009, which set high bars for granting anonymity and publication bans. The Tribunal noted that human rights proceedings often involve sensitive information, but only in truly exceptional cases would the interests of personal privacy outweigh the public interest in a transparent process.
Mental health argument rejected
The applicant’s attempt to invoke Section 35(9) of the Mental Health Act, which restricts disclosure of patient information, was also unsuccessful.
The Tribunal found this section irrelevant since the applicant intended to present his medical records as part of his case.
The applicant’s request was denied in this interim decision.
For more information, see Aggarwal v. Algoma University, 2023 HRTO 1790 (CanLII)
