In Stankovic v City of Edmonton et al, 2023 AHRC 73, the Civic Service Union 52 (CSU 52) brought an interim application seeking an order that the names of any non-managerial / bargaining unit employees be anonymized in any decision related to this particular human rights complaint.
This case is important because there has not been very much guidance on the circumstances where the AHRC would be willing to anonymize the names of witnesses in human rights hearings, and in circumstances where they are not willing to anonymize, if there is anything else they can do to protect sensitive information.
Facts
The following are the pertinent facts summarized by the AHRC:
- This is a human rights case where the complainant alleged discrimination in employment practices, contrary to Section 7 of the Alberta Human Rights Act, and from a trade union, contrary to Section 9
- The CSU 52 Union argued that two (2) of the employees that were going to be witnesses at various points in the complaint were going to be giving evidence that the complainant had behaved inappropriately toward them at work, and would likely testify about the impact this had on them in their personal lives and their overall wellbeing
- The decision does not describe in detail what specific sensitive information was expected to be disclosed at the hearing by the witnesses
Analysis / Conclusion
The AHRC noted that under its Bylaws and its Practice Direction: Requests For Anonymization of Tribunal Decisions, the default expectation is that names of complainants and witnesses and the evidence given will not normally be anonymized, except in exceptional circumstances.
The AHRC summarized some additional guidance from the caselaw, as follows:
[12] In CYB v University of Alberta, the Tribunal outlined the exceptional circumstances where an anonymization order will be granted:
Amongst the exceptional circumstances where the Tribunal, or the Chief as in this case, will grant an anonymization request are in complaints involving children under the age of 18 or where there is either highly sensitive personal or health information. In addition, some cases have considered the relatively early stage of proceedings when deciding to anonymize screening decisions.
[13] Similarly, the Tribunal stated in C.K. v College of Physicians and Surgeons of Alberta, that:
These principles suggest that anonymization should not be granted on a routine basis, but rather in exceptional or extraordinary circumstances. In Alberta, cases that have granted anonymization have typically involved circumstances where the reasons required disclosure of significant amounts of highly sensitive medical information.
The AHRC found that in this case, the identities and information the CSU 52 union alleged would be disclosed in its evidence was not sufficiently sensitive to justify anonymization.
However, the AHRC went on to note that it had other options to protect the disclosure of sensitive information, and it would likely be able to do so in this case:
[22] This Tribunal recognizes that there may be some vulnerability arising from the inclusion of private information in its decisions. Thus, in writing its decision after the hearing of this Complaint, the Tribunal will strive to exclude the witnesses’ private information except where the private information is necessary to support the decision.
My Take
It is not unusual for litigants to want to keep their identities and information private, but it is rare for a court or tribunal to allow anything but very sensitive information to be kept private.
The AHRC’s comments that it will strive to exclude private information except where necessary is somewhat encouraging, but it will not be realistically possible to know what information the tribunal considers necessary until after the decision is made – at which point it will be too late. This is just an observation, as I do not know of a better solution which still accomplishes the important public objective of transparency.
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