The Human Rights Tribunal of Ontario (HRTO) has denied a joint request to seal all adjudicative records in a discrimination and harassment case involving the Windsor Police Services Board, while granting an order to redact information covered by an existing publication ban in a related criminal proceeding.
The case, filed by applicant X.Y. on Jan. 11, 2024, alleges discrimination and harassment on the basis of race, colour, ethnic origin, as well as sexual harassment, solicitation or advances, and reprisal contrary to the Human Rights Code. The allegations are also the subject of a related criminal proceeding, in which the court issued a publication ban under section 486.4(1) of the Criminal Code to protect the identity of the victim and witnesses.
On July 17, 2024, journalist J.V. with CBC News requested access to the adjudicative records in the application. Upon receiving the access request, the HRTO conducted a review and, considering the nature of the allegations and the existing publication ban, directed the parties to advise whether any confidentiality requirements applied.
Both the applicant, X.Y., and the respondents—the Windsor Police Services Board and individual respondents A.B., C.D., E.F., and G.H.—requested that the HRTO issue a sealing order to protect the confidentiality of the records. In the alternative, the respondents sought an order to redact information covered by the publication ban.
In her interim decision dated Oct. 24, 2024, Vice-chair Leah Simon denied the request for a sealing order, stating that it was “overly restrictive” and that the parties had not met the burden of proving its necessity. “The publication ban prohibits the publication, broadcasting or transmission of information that could identify the victim or a witness in the criminal proceeding,” she noted. “It does not similarly restrict public access to information about the substance of the allegations before the court.”
The Tribunal emphasized the importance of the open court principle and the Tribunal Adjudicative Records Act, 2019 (TARA), which mandates that adjudicative records are presumptively available to the public. “Public access to adjudicative records is protected by s. 2(b) of the Charter of Rights and Freedoms; restrictions on access are exceptional,” Simon wrote.
The HRTO granted the respondents’ alternative request for an order to redact information covered by the publication ban, finding it sufficient to prevent the risk of public disclosure of the applicant’s identity. “Even if the publication ban does not, on its face, prohibit the disclosure of the Tribunal’s unredacted adjudicative records to a third party, redaction is necessary to comply with the spirit of the court’s order,” the decision stated.
The order to redact allows the parties to remove not only names and identifying information but also broader details that could lead to identification. “The parties have the discretion to redact information from the records that they believe so specific and revealing, that if publicly disclosed, would violate the spirit of the publication ban,” Simon explained.
The Tribunal outlined a process for implementing the redactions:
- Within 30 days, the respondents must deliver a redacted copy of the records to the applicant, along with submissions supporting any broader redactions.
- The applicant then has 14 days to make additional necessary redactions and deliver the final copy to the respondents and the Tribunal.
- The Tribunal will provide the redacted records to the requester. If the requester disputes any redactions, they may file submissions, and the issue will be adjudicated by the Tribunal.
Additionally, the Tribunal ordered that the names of the applicant and individual respondents (except for the individual respondent who is the accused in the criminal proceeding) be anonymized in all public decisions. The anonymization of the accused’s name is temporary, pending further submissions from the parties. “If the parties want to restrict the public disclosure of the identity of the individual respondent/accused in this proceeding going forward, they must file submissions in support of this request,” Simon noted.
The Tribunal noted that the parties did not request a confidentiality order at the time of filing their pleadings, nor did they advise the Tribunal of the existing publication ban. This oversight emphasizes the need for legal practitioners to proactively address confidentiality concerns early in the process, especially when parallel proceedings are involved.
In denying the sealing order, the Tribunal reiterated that the onus is on the party seeking such an order to prove its necessity and that less restrictive measures are insufficient. “Assuming the respondents are suggesting that a full Sealing Order is necessary to protect applicant’s privacy interest, they do not explain why the less restrictive publication ban already in effect and an Order to Redact issued by this Tribunal would not be sufficient to do so,” Simon stated.
For more information, see X.Y. v. Windsor Police Services Board, 2024 HRTO 1495 (CanLII).
