The "open court" principle has long been a hallmark of the Canadian legal system.

That's because it encourages judges and juries to behave fairly, according to the McConchie Law Corporation website.

"The 'open court' principle assumes that public confidence in the integrity of the court system and understanding of the administration of justice is fostered by openness and full publicity," the law firm states. 

That's not all. McConchie Law Corporation also maintains that this principle advances an effective evidentiary process, promotes a shared sense that courts dispense justice, and provides ongoing opportunities for the public to learn how the law is being applied.

"Accordingly, personal embarrassment or financial prejudice to an accused or to a witness is generally not a valid basis for publication ban," it states.

Yet in three rulings over the past two months, the B.C. Human Rights Tribunal has anonymized the names of adult complainants in cases not involving minors.

Anonymization occurred in two other cases over that period involving adults regarding their children.

Only when a person is under the age of 18 does the tribunal's Rules of Practice and Procedures "presume that the minor's privacy interests outweigh the public interest in access to the tribunal's proceedings".

However, the tribunal's rules also allow for anonymization if a party in the dispute applies for an order stating "why privacy interests outweigh the public interest in access to the tribunal's proceedings".

Under these circumstances, it's in the eye of the tribunal member to decide whether privacy trumps public access.

In one recent case between "The Patient" and "The Clinic and Dr. R and Dr. H. and Dr W.", tribunal member Grace Chen explained why she granted the anonymization request.

It was "appropriate in these circumstances to make an order limiting the publication of the names in this decision because I have ultimately dismissed the complaint in its entirety".

In other words, if there was no merit to the person's allegations, according to Chen, this offered a "more compelling reason" to delete the respondents' names from the ruling.

In her decision, Chen acknowledged a previous tribunal ruling noting that possible damage to a doctor's reputation is "not a persuasive argument on its own".

In another recent case between "The Employee" and "The Resort", tribunal member Pamela Murray anonymized the complainant and respondent in the absence of an application from the parties.

There is nothing in the tribunal's rules that allow anonymization in the absence of an application. But that didn't stop Murray. She wrote that she brought her own motion forward—to herself.

"I have had to discuss information about the Employee's mental health in this decision that is even more intensely personal and private than usual in a preliminary decision of this kind," she wrote.

Murray's ruling revealed that the complainant, a housekeeping manager, had a "psychotic episode attributable to alcohol abuse and a traumatic brain injury".

The ruling stated that if she were to name the resort, this would allow for identification of the employee. And if the employee's name was made public, it would have a "real prospect of having a negative effect on his ability to find work in the future or stigmatizing him as a person".

This person was fired two weeks after he returned to work. The employee complained of discrimination on the basis of mental disability in employment.

Like Chen, Murray dismissed the complaint, concluding "there is no reasonable prospect the Employee would persuade the Tribunal after a hearing that there was a connection between his mental disability and the Resort firing him".

School district's name kept secret

In three B.C. Human Rights Tribunal rulings in October, the complainants' names were anonymized to shield minors' identities. That seems to be in accordance with the tribunal's rules.

Yet in a fourth ruling, Murray anonymized an adult complainant's name as well as the name of a school district, its superintendent, and a principal.

"Neither party applied for an order limiting publication of the Student's name or information that might identify them," Murray wrote in that case. "The Student is no longer a minor and the Tribunal's usual presumption is that it will limit publication of a minor's name therefore does not apply.

"However, I have decided to limit publication of the Student's name on my own motion," Murray continued. "I have also decided to limit publication of the other parties' names because publishing their names has the potential to identify the Student."

However, in another case this month in which the names parent and daughter were anonymized, the school district was identified.

In the December decision involving the resort employee, Murray acknowledged there's a "strong public interest" in the tribunal having open and public processes.

But she cited a 2019 B.C. Court of Appeal ruling involving workers' compensation to justify her decision.

In that case, a cardiology technologist described anonymity as imperative in a case involving a retired cardiologist and his wife, whose names were also anonymized.

The appellant suffered from bipolar disorder. The retired cardiologist and his wife also sought anonymization because "it would prevent further unwanted and unfair publicity", but opposed the order for the appellant.

"Replacing names with initials in reasons for judgment minimally impairs the openness of judicial proceedings because such an order relates only to a 'sliver' of information: B.G. et al v. H.M.T.Q. in Right of B.C., 2004 BCCA 345 at para. 26," wrote Justice Gail Dickson on behalf of the panel. "Given the negative impact of personal identification for all three individuals and the minimal nature of the impairment, as well as the fact that C.S. has not been declared a vexatious litigant in this Court, the salutary effects of an initialization order outweigh its deleterious effects."

Unlike in the B.C. Court of Appeal case, the B.C. Human Rights Tribunal did not use initials for the "Patient" in one case and the "Employee" and "Resort" in the other case.

But similar to the B.C. Court of appeal ruling, neither of the complainants was characterized as "vexatious".

These ruling involving adults' names being anonymized at the B.C. Human Rights Tribunal came in the same month that three B.C. Court of Appeal justices imposed a sweeping publication ban on an appeal involving well-known gangster Jamie Bacon.

One could argue that if the B.C. Human Rights Tribunal develops a pattern of deleting adult complainants' names because complaints are dismissed, this could offer an incentive to people to file frivolous allegations.

That's because there would be little downside if you lose in terms of terrible publicity. And if you win, you get money.

It could also be argued that easy anonymization also offers a disincentive for respondents to settle before a hearing is held.

In addition, icreased secrecy undermines the capacity of the media to find participants who've lost cases and hear their explanations why they might think the ruling was unfair.

Keep in mind that the public pays for the operations of the B.C. Human Rights Tribunal through its taxes.

Except when minors are involved, the public generally has a right to know the identities of those who are making use of its services by filing complaints.

The Canadian Charter of Rights and Freedoms guarantees freedom of the media so it can publicize court proceedings.

And there can be a serious cost so society when the open court principle is subverted, as McConchie Law Corporation points out on its website.

First and foremost, it undermines public confidence in the integrity of the legal system. Secondly, it undermines public accountability for the decision makers.