Case Summary: An application for anonymity may be unsuccessful in light of behaviour inconsistent with a desire for anonymity: both the litigious conduct of a petitioner, and a delay in time in applying for anonymity and sealing of court files after commencing complaints may undermine a petitioner’s assertion of a concern for privacy
An application for anonymity in B.C. Human Rights Tribunal proceedings requires weighing individual privacy interests against the public interest in access to the Tribunal’s proceedings. The burden of proof is on the applicant. Speculative arguments regarding impact on future employment, and assertions that one’s reputation has been tarnished are insufficient reasons to impose an anonymization order. A lack of compelling medical evidence, and a retroactive application regarding an already rendered decision weigh against the granting of an anonymization order.
Administrative law – Decisions reviewed – Human Rights Tribunal – Duty to accommodate – Judicial review – Natural justice – Standard of review – Patent unreasonableness
Stein v. British Columbia (Human Rights Tribunal),  B.C.J. No. 65, 2020 BCSC 70, British Columbia Supreme Court, January 20, 2020, S.C. Fitzpatrick J.
The petitioner had initiated and been involved in what is described as a significant number of human rights complaints and other work-related complaints before certain tribunals, over a period of approximately 8 years. In early 2019, the petitioner applied to the B.C. Human Rights Tribunal (the “Tribunal”) for anonymization of her name in proceedings related to complaints she had filed against Vancouver Coastal Health Authority in 2013-2015. She sought retroactive anonymization in seven earlier published decisions in those proceedings. In support, the petitioner filed a letter from her doctor stating the exposure to the petitioner’s medical records and diagnoses in public decisions was having a detrimental effect on her mental and physical health, and anonymization was required so the petitioner could get fair treatment from future employers. The Tribunal dismissed her application.
The petitioner sought a reconsideration of that decision. Her application for reconsideration was dismissed. The petitioner therefore filed the petition at issue in this case, seeking judicial review of those decisions. The petitioner also applied to the Court to anonymize her name in this action and any decisions made in this action, as well as for an order sealing the court file. The petitioner had made several other applications of this nature in B.C. Supreme Court, with mixed success.
The standard of review to be applied on judicial review to a decision of the Tribunal is as stated in section 59 of the Administrative Tribunals Act, S.B.C. 2004, c. 45 (the “ATA”). The Court found that in the past, it had recognized the Tribunal’s decision to anonymize the names of parties as a discretionary one, and therefore the standard of patent unreasonableness applies.
Section 50(4) of the ATA states that the Tribunal must make its decisions available to the public. Rule 5(5) of the Tribunal’s Rules of Practice and Procedure states that Tribunal decisions are available to the public and may be published. However, Rule 5(6) allows for an application for an order limiting public disclosure of personal information, which “must state why privacy interests outweigh the public interest in access to the tribunal’s proceedings.”
The sole question at issue on judicial review was whether the petitioner had established her privacy interests outweighed the public interest in having access to the various complaint decisions. The petitioner submitted that the Tribunal’s decision not to grant her anonymity was exercised arbitrarily or in bad faith; for an improper purpose; and was based entirely or predominantly on irrelevant factors, pursuant to sections 59(4)(a), (b), and (c) of the ATA.
At paragraph 64, the Court sets out the considerations that apply on this type of application:
- an applicant for anonymization bears the onus of establishing that their privacy interest outweighs the public interest of an “open court” proceeding;
- a speculative impact on one’s future employment prospects is not a sufficient reason for the exceptional step of imposing an anonymization order;
- the assertion that one’s reputation may be tarnished is insufficient justification for limiting publication;
- the Tribunal should be reluctant to anonymize the name of a complainant, without compelling medical evidence that there is reason to do so; and
- an application for a retroactive order after a decision has been rendered will weigh against granting the order for anonymization.
In its decision, the Tribunal found the following factors weighed against granting anonymization: the application came years after each of the published decisions; the evidence from the petitioner’s doctor was largely a reiteration of self-reporting, and was a “bare assertion that is speculative in nature;” the evidence of the petitioner’s lack of job prospects was unpersuasive and speculative; and there was limited, and no compelling evidence that the petitioner’s health had been impacted by the complaint decisions.
The Court found that the petitioner failed to establish any basis for the suggestion that the decision resulted from an arbitrary or bad faith exercise of discretion, or discretion exercised for an improper purpose. She further failed to establish the decision was based on irrelevant factors, or that the Tribunal ignored relevant factors. The Court therefore could not conclude that the decision was patently unreasonable.
The Tribunal had found that the petitioner’s reconsideration application consisted of more arguments in support of her initial complaint position. The Tribunal found that the new evidence provided by the petitioner did not warrant a reconsideration of the decision, as there was nothing to indicate the petitioner could not have provided that evidence at the time she made her case. The Court concluded that the petitioner failed to establish either decision was patently unreasonable.
With respect to the petitioner’s application for anonymity and sealing of the court file, the Court held a publication ban should be ordered when:
- such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and
- the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.
The Court held there was no basis upon which to seal the court file or grant the petitioner anonymity, as there was no persuasive evidence that public access would harm her employment prospects, and as the medical evidence was wanting in terms of establishing a real risk to her health in the event her application was denied. The petitioner’s assertion that she wants to protect her health and job prospects were found to be overshadowed by her advancing a multitude of litigation against various parties. The Court also considered that the petitioner had been declared a vexatious litigant in a past proceeding, and that other stakeholders have an interest in identifying persons with a problematic history such as having been declared a vexatious litigant. Her petition was dismissed, with costs to the Vancouver Coastal Health Authority.
This case was digested by Mollie A. Clark, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter. If you would like to discuss this case further, please contact Mollie A. Clark at firstname.lastname@example.org.