Tribunal breaking the law to bury testimony transcript in historic #MeToo case
SUDBURY, ON, Sept. 22, 2020 /CNW/ - Dr. Ana Safavi is taking her sexual harassment complaint against a powerful senior doctor all the way to trial. She is the first medical trainee in North America to do so. She was fired in June from the Northern Ontario School of Medicine (NOSM) after refusing the medical school's demands to mediate.
She and her witnesses are set to start testifying against the powerful doctor on Thursday. Then last week, in an unprecedented move, the HRTO preemptively sealed the transcript. The average person is denied such special requests — the tribunal is bending the rules to protect this man's reputation.
DIFFERENT RULES FOR THE WELL-CONNECTED?
Dr. Safavi's lawyers at Hameed Law have asked a judge to overturn the unconstitutional order. "By law, the transcript must be accessible to the public," says Mr. Hameed. "With this decision, the HRTO is signalling that one man's reputation is more important than a transparent justice system."
A witness to one of the sexual harassment incidents, Mr. Brown, says he's uncomfortable testifying in secret. "What if I'm misquoted by the Tribunal? Shouldn't I be allowed to see the transcript to set the record straight?"
When Dr. Safavi first spoke with the press in February 2018, she had been suspended four days after telling NOSM's Vice Dean about the sexual harassment. A year later, after she filed in the HRTO, NOSM's investigator suddenly exonerated the well-connected faculty member — without interviewing him or Dr. Safavi. At the same time, he stepped away from supervising trainees, although NOSM hid his resignation from her.
Now, she is warning the public about the crisis unfolding at the HRTO. A secretive tribunal is equally dangerous for victims and the accused, because shielding the government's activities from public scrutiny may allow corruption to flourish unchecked. "Unlike judges, tribunal adjudicators do not have lifetime appointments," explains Mr. Hameed. "They must seek reappointment every 2-5 years."
HRTO CHAIR'S CONFLICT OF INTEREST?
The new HRTO Chair is former head of law firm Borden Ladner Gervais which is defending NOSM before the HRTO. A corporate lawyer with no human rights or tribunal experience, he departed BLG in June to quietly accept the "urgent" 6-month appointment — first revealed by the press on a tip from Tribunal Watch Ontario, an organization criticizing the Ford government for letting experienced adjudicators go while stacking tribunals with patronage appointments.
The Chair can veto appointments, so he wields significant power over adjudicators such as the one presiding over Dr. Safavi's case whose term expires in January. Under Ford, reappointments have been scarce and no longer tied to performance metrics.
TRIBUNALS IN LEGAL PERIL
In July, Democracy Watch asked the Courts to declare the Ford government's new Tribunal reappointment process unconstitutional, in part because eliminating their job security may leave adjudicators vulnerable to influence from higher-ups. Adjudicators must remain impartial, but their decisions undergo "review"; for high-profile cases like Dr. Safavi's, the Chair may even review the decision himself. The Courts ruled against such tribunal practices in 2019, but little appears to have changed.
The day before the HRTO sealed the transcript, Dr. Safavi's lawyers had asked a judge to revoke the Chair's appointment (as against the law) and to compel the release of records that the HRTO must disclose to the public, but has not. Some of these records relate to other cases against NOSM.
CRISIS OF CONFIDENCE
Dr. Safavi worries the tribunal won't hear all her evidence. The defendant denied meeting with her alone, so she submitted audio recordings of the meetings to disprove his lies. But the HRTO is not acknowledging receipt of the tapes — despite receiving them electronically and by courier.
"I feel so stupid for putting my trust in the HRTO," says Dr. Safavi. After she filed her complaint, she began helping others do the same. "I wanted other trainees to see a way for us to hold medical schools accountable. But how can the HRTO hold institutions accountable, if it won't hold itself accountable to the law?"
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