The Human Rights Tribunal of Ontario has denied a request by the Toronto District School Board (TDSB) and two of its employees to seal records in a discrimination case, emphasizing the importance of transparency in adjudicative proceedings.
In an interim decision, Adjudicator Anthony Michael Tamburro ruled that the respondents’ request for a sealing order or confidentiality order concerning information related to TDSB employee J.S. and non-parties would be denied. However, the Tribunal granted the respondents 30 days to identify specific portions of the file pertaining to K.J., another TDSB employee, that may warrant confidentiality due to the sensitive nature of the allegations.
The case involves an application filed by J.D., alleging discrimination with respect to employment on the grounds of race, ethnic origin, disability, sex, sexual solicitation or advances, and reprisal or threat of reprisal, contrary to the Ontario Human Rights Code.
Third-party access requests
The Tribunal’s Access to Records and Information Office received requests from two third parties for “all documents” in the application. Since the application pre-dated the Tribunal Adjudicative Records Act, 2019 (TARA), the Tribunal notified the parties and provided an opportunity to request a confidentiality order regarding the adjudicative records.
On April 30, 2024, the respondents objected to the first access request and sought a sealing order. In the alternative, they requested a confidentiality order to redact and anonymize certain information. The applicant, J.D., did not file submissions.
In response, the first requestor objected to any sealing or confidentiality order, stating that if the Tribunal were to make such an order, it should “redact only such material as strictly necessary to safeguard any fundamental dignity interest of an individual excepted from disclosure under applicable case law.”
Principles of open justice
The Tribunal reiterated the fundamental principles of open justice and freedom of expression, citing the Supreme Court of Canada’s decision in Sherman Estate v. Donovan, 2021 SCC 25. The decision emphasized that openness is protected by the constitutional guarantee of freedom of expression and is essential to the proper functioning of democracy.
“Because court openness is a constitutionally protected right, an order restricting access to the Tribunal’s adjudicative records is exceptional,” the Tribunal stated.
The Tribunal also referenced section 2(2) of TARA, which allows for a confidentiality order if “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.”
Analysis of the respondents’ request
The respondents argued that the disclosure of the records would pose a serious risk to the important public interest of privacy and dignity, particularly concerning K.J. and other TDSB employees who are not parties to the application.
However, the Tribunal found that there was no serious risk that openness would pose to the important public interest regarding information related to J.S. and non-parties. “There does not appear to be information in the Tribunal’s file of a sufficiently sensitive nature such that it can be said to strike at their biographical core,” the decision stated.
Regarding K.J., the Tribunal acknowledged that the file contains information of a highly explicit sexual nature that is “sufficiently sensitive such that it can be said to strike at his biographical core.” As such, there is a serious risk that, without an exceptional order, K.J. would suffer an affront to his dignity.
Proportionality and specificity required
Despite recognizing the potential harm to K.J., the Tribunal determined that a complete sealing order was not justified. “A complete sealing order of the file goes too far,” the Tribunal stated. “If the respondents want a partial redaction of the file, it is incumbent upon them to specifically identify those parts of the file that, in their opinion, strike at K.J.’s biographical core.”
The Tribunal granted the respondents 30 days to file submissions that clearly identify the specific portions of the file they believe should be subject to a confidentiality order. Failure to do so within the specified time frame would result in the release of adjudicative records to the requestors without further notification.
Previous anonymization decision
The interim decision also references an earlier ruling dated March 12, 2024, where the Tribunal denied a request to anonymize the names of the personal respondents. The Tribunal found that the respondents had not demonstrated the exceptional circumstances necessary to justify such a departure from the principle of open justice.
“Reputational interests are not sufficient to warrant overriding the fundamental principle of open justice,” the Tribunal stated in the earlier decision.
In that decision, the Tribunal noted that the allegations against J.S. involved failing to appropriately investigate J.D.’s allegations against K.J. and allegedly conspiring to allow K.J. to “leer” at J.D. on one occasion. “There are no allegations of a sexual nature against [J.S.] and he has not pointed to any exceptional circumstances that would justify anonymization of his name,” the Tribunal stated.
Regarding K.J., the Tribunal acknowledged the concerns about personal and professional difficulties arising from the sexual harassment allegations but maintained that these concerns did not meet the threshold for anonymization. “While it is understandable that [K.J.] would prefer to maintain privacy, that is not sufficient to override the public interest in openness of Tribunal proceedings,” the decision read.
The Tribunal’s decision highlights the stringent criteria that must be met to restrict access to adjudicative records. HR professionals and employment lawyers should be mindful of the openness of Tribunal proceedings and the limited circumstances under which confidentiality orders may be granted.
For more information, see Davila v. Toronto District School Board, 2024 HRTO 1349 (CanLII).
