Ng v. City of Vancouver (No.2), 2024 BCHRT 228
Date Issued: August 2, 2024
File: CS-000938
Indexed as: Ng v. City of Vancouver (No.2), 2024 BCHRT 228
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Giana Ng
COMPLAINANT
AND:
City of Vancouver
RESPONDENT
REASONS FOR DECISION
APPLICATION TO LIMIT PUBLICATION
Rule 5(6)
Tribunal Member: Theressa Etmanski
On their own behalf: Giana Ng
Counsel for the Respondent: Jennifer Lamont
I INTRODUCTION
[1] Giana Ng filed a complaint with the Tribunal alleging that the City of Vancouver, her former employer, failed to accommodate her mental disability.
[2] Ms. Ng now applies under Rule 5 of the Tribunal’s Rules of Practice and Procedure [Rules] to limit the publication of her personal identifying information from any written decisions, and to redact her personal information from any parts of her file that could be made available to the public. She says the disclosure of her name alongside her private medical information will impede her search for gainful employment. Ms. Ng also cites potential damage to her professional reputation, and exacerbation of her health condition, should her private information be made public by the Tribunal. She says that the public interest in access to Tribunal proceedings can be preserved by still releasing public decisions with only her identity protected. She relies on the cases of CFO v. The Organization and others , 2020 BCHRT at paras. 28-35 and The Candidate v. Ernest & Young LLP , 2020 BCHRT 119 at para. 11 in support of her application.
[3] The City opposes this application. The City says an applicant must provide strong grounds for limiting publication of personal information because there is a strong public interest in the Tribunal maintaining open and public processes consistent with the purposes of the Code: A. v. Famous Players Inc., 2005 BCHRT 432 at para. 10 [Famous Players]. In the current circumstances, the City says Ms. Ng’s privacy interests do not outweigh the public interest in the Tribunal’s proceedings.
[4] For the following reasons, I deny Ms. Ng’s application. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II DECISION
[5] Complaints at the Tribunal are presumptively public: Mother A obo Child B v. School District C, 2015 BCHRT 64 at para. 7. This openness serves four main goals: maintaining an effective evidentiary process; ensuring that Tribunal members act fairly; promoting public confidence in the Tribunal, and; educating the public about the Tribunal’s process and development of the law: Edmonton Journal v. Alberta (Attorney General), [1989] 2 SCR 1326 at para. 61; JY v. Various Waxing Salons, 2019 BCHRT 106 at para. 25. These goals align with the purposes of the Code, which include fostering a more equitable society and identifying and eliminating persistent patterns of inequality: Code, s. 3. The main way that the Tribunal furthers these purposes is through its public decisions: Famous Playersat para. 14.
[6] The Tribunal has discretion to limit publication of identifying information where a person can show their privacy interests outweigh the public interest in full access to the Tribunal’s proceedings: Rule 5(6); Stein v. British Columbia (Human Rights Tribunal), 2020 BCSC 70 at para. 64(a). The Tribunal may consider factors like the stage of the proceedings, the nature of the allegations, the nature of the private details in the complaint, harm to reputation, or any other potential harm: JYat para. 30. It may also consider whether the proposed limitation relates to only a “sliver” of information that minimally impairs the openness of the proceeding: CS v. British Columbia (Workers’ Compensation Appeal Tribunal), 2019 BCCA 406 at para. 37. It is not enough to assert that a person’s reputation may be tarnished: Stein at para. 64(c).
[7] In some cases, the fact that it is the party who brought the complaint that seeks anonymization may weigh against granting it: Low v. Mackinnon and Registered Nurses’ Association of BC , 2004 BCHRT 347 at para. 8; Ferri v. Society of Saint Vincent de Paul and another (No. 2) , 2017 BCHRT 263 at para. 9. However, which party brings the anonymization application is not determinative.
[8] Ms. Ng states that she is actively searching for work and has already faced a barrier because the respondent refuses to provide her with a positive reference. She fears that the publication of her name and the disclosure of her mental disability will create an additional barrier if a potential employer were to conduct a background check. She says that potential employers may unfairly assume that she is unfit to work due to her disability, and this will prevent her from securing employment. Ms. Ng also cites potential damage to her professional reputation, which she says she has worked hard to cultivate.
[9] The City denies that it has not provided Ms. Ng with a positive employment reference which has impacted her employability. In any event, the City says this factor would not create a privacy interest that would weigh against the public nature of the tribunal’s process. I agree that the issue of a reference is not relevant to the assessment of the issue currently before me, beyond providing some context to Ms. Ng’s position.
[10] The City further says the potential harm to Ms. Ng’s employment prospects arising from the disclosure of her medical information is purely speculative. They say this speculative potential harm does not support anonymization. Moreover, the City says it is not the case that every complaint involving medical information engages a privacy interest that outweighs the public’s interest in transparency. For example, in Heitner v. BC Provincial Renal Agency and another , 2019 BCHRT 130, the City notes that the Tribunal found that the complainant’s “hidden disabilities” arising from her concussive symptoms did not either on their own, or in conjunction with other factors, support anonymization.
[11] The Tribunal has recognized the legitimate privacy interests at stake in protecting an individual’s private medical information: JY at para. 30. In particular, the Tribunal has previously anonymized complaints when that medical information relates to a mental illness that may be associated with stigma or stereotypes that could expose an individual to harm: XP obo JR v. The Hospital and others , 2018 BCHRT 4 at para. 5; see also DD v. The Hotel and others , 2020 BCHRT 109 at para. 28; The Worker v. The Society and others , 2020 BCHRT 98 at paras. 3-4. Notably, the Tribunal in Heitner , relied on by the City, specifically found that concussive symptoms are not known to carry a stigma, which distinguishes it from complaints involving stigmatized mental disabilities.
[12] In this case, Ms. Ng has not made any specific arguments about how any stigma associated with her alleged mental disabilities may apply in her circumstances. Rather, she offers a general speculation that potential employers may find her unfit to work if they learn about her disability. It is difficult to gauge the likelihood of this risk without any further information.
[13] Furthermore, this complaint is at an advanced stage of the Tribunal’s proceedings, with hearing dates scheduled for less than two months from now. I also accept the City’s argument that the details of the complaint have been in the public domain since the publication of the preliminary decision in October 2023. I further agree that the Tribunal’s reasoning in Kandola v. UBC and others (No. 3) , 2006 BCHRT 391, is applicable to this complaint, where the Tribunal noted:
[23] Finally, as stated in Smith v. Tung (No. 3), 2006 BCHRT 217 (para. 8), most applications to the Tribunal under Rule 6(5) are made early on in the proceedings, prior to any preliminary or final decisions being rendered. Here, as in Smith, the situation is quite different. As noted earlier, details of both complaints have been in the public domain for several months.
[24] Even if I were inclined to grant the complainant’s applications, with respect to the previous Tribunal decisions, there is little or nothing the Tribunal can do to retrieve and change the information already in the public domain. This being the case, there is little to be gained by anonymizing future decisions concerning the complaints, as it would not give the complainant the anonymity he seeks.
[14] The Tribunal’s reasons in Francis v. B.C. (Ministry of Justice) (No. 2) , 2014 BCHRT 171 is further applicable the issue of information that is already public:
[10] It is not the Tribunal’s practice to retro-actively anonymize names of parties or participants that are already in the public domain. The Tribunal has a legitimate concern in not using its limited resources to review and determine such retro-active applications which could be innumerable. In my view, such an application would be considered only on an exceptional basis.
[11] Concerns about privacy interests need to be raised at the outset of the complaint process and/or at the time of a first application. It is late in the day to apply for anonymization when a decision which identifies parties and/or participants has already been released. If new information forms the basis of a request to retro-actively anonymize a decision, the application should directly address that topic, preferably with evidence in support.
[15] For this reason, I find that it would be of little utility to limit publication at this late stage of proceedings, as the privacy Ms. Ng seeks to protect is already in the public domain: Bakhtiyari v. BCIT (No. 2) , 2006 BCHRT 482, para. 5; Ferri v. Society of Saint Vincent de Paul and another (No. 2) , 2017 BCHRT 263 at para. 12.
[16] The stage of the complaint’s proceedings is also a primary basis for distinguishing this application from the decisions relied on by Ms. Ng. In both CFO and The Candidate, applications to limit publication were brought at early stages of the Tribunal’s process. There is a greater scope for limiting public access at early and interlocutory stages of the Tribunal’s process: JY at para. 30; A. v. Famous Players Inc., 2005 BCHRT 432 at para. 11.
[17] Similarly, I am not persuaded by Ms. Ng’s assertion that she may face harm to her professional reputation should her medical information be made public. She has not provided any information to support this argument and I see this largely as a bare assertion of harm. This is not a case, such as in CFO, where the complainant provided details about the nature of her profession and the ways that harm to her reputation may manifest and have impact her future career prospects. The mere assertion that there may be damage to an individual’s reputation is not sufficient to outweigh the public interest in access to Tribunal proceedings: Mr. C. v. The Clinic and another , 2016 BCHRT 192 at para. 33; The Patient v. The Clinic and others , 2019 BCHRT 268 at para. 10. In Ms. C the Tribunal explained at paragraph 33:
… Many parties who come before the Tribunal fear that their reputations may be damaged by allegations made by or against them. However, as noted by the Tribunal in Sinclair v. Blackmore and others, 2004 BCHRT 37, “[p]arties before the Tribunal, like those before the courts, face an inevitable loss of privacy with respect to the matters in issue between them. This is the price that parties must pay in order to ensure that the public has reasonable access to legal proceedings” (para. 39).
[18] While I appreciate the potential harm stemming from the stigma associated with some mental disabilities, I find that Ms. Ng has not provided sufficient information in this complaint to take this risk beyond mere speculation.
[19] Further, the City says, and I agree, that the nature of the allegations in this complaint are not prurient or egregious. By this I do not suggest that the allegations are not serious or that the events described in this complaint did not have an adverse effect on Ms. Ng. The veracity of her allegations are yet to be decided. However, this complaint does not involve the type of egregious conduct that has elsewhere attracted a heightened privacy interest, such as complaints involving sexual harassment: A and B v. Famous Players Films and C , 2005 BCHRT 432; CN v. Health Authority and another, 2014 BCHRT 265; Musa v. Costco Wholesale Canada Ltd., 2009 BCHRT 271. Rather, in essence the allegations in this complaint are about whether the City failed to accommodate Ms. Ng’s disability. I find that this to be a neutral factor in determining whether this complaint should be anonymized.
[20] Finally, Ms. Ng says she will potentially experience negative effects on her health, such as stress and anxiety related to public exposure of her personal information, which could exacerbate existing health conditions and compromise her overall well-being. I note that Ms. Ng raised this factor for the first time in her reply, and the City did not seek leave to file a sur-reply to respond to it.
[21] The Tribunal endeavours to provide a safe and trauma-informed process for all participants. However, participation in any adversarial process where one must revisit painful experiences can be stressful and have an emotional toll on individuals, in particular those representing themselves. While the stress of having details of one’s disability in a published final decision, for example, may add to Ms. Ng’s challenges, I do not find this factor increases the weight of her privacy interests where the information is already in the public sphere. I encourage the complainant to seek out resources and supports to help safeguard against any impact on her mental health that participation in the Tribunal’s process may bring.
III CONCLUSION
[22] I have not been persuaded that, at this stage of proceedings, the privacy interests articulated by Ms. Ng outweigh the public interest in an open adjudicative process. Her application to limit publication is denied.
Theressa Etmanski
Tribunal Member