Paper – Open Court and Confidentiality: Can there be a Balance in Light of our New Media Age?

Paper prepared for the OBA Human Rights Annual Update on May 23, 2014.

The topic of discussion in this paper revolves around privacy issues that arise when persons with disabilities seek redress before the Human Rights Tribunal of Ontario (HRTO). It is likely that confidentiality will not be maintained and intimate details about their disability will not only be revealed through the public hearing process but will then also be posted on a publicly accessible website, such as CanLii.

In this paper, ARCH examines the current HRTO procedures and the high threshold that the HRTO applies in requests for anonymizing or redacting HRTO decisions. The HRTO procedures are contrasted with those in some other Canadian jurisdictions and of some other Ontario tribunals. ARCH also raises questions about the HRTO’s application of the open courts principle. ARCH considers whether the open court principle is meant to apply for public online access to decisions and whether its application needs to be reconsidered in the digital age.