Superior Court Expands Access to Tribunal Records: Toronto Star V

Superior Court Expands Access to Tribunal Records: Toronto Star v. AG Ontario, 2018 ONSC 2586

By: Mary-Elizabeth Dill

On February 6, 2017, the Toronto Star launched a Charter challenge to the Freedom of Information and Protection of Privacy Act (“FIPPA”) as it applies to administrative tribunals. The Star commenced the case after the Human Rights Tribunal of Ontario and the Ontario Labour Relations Board denied two Star reporters access to case records they had requested as part their investigative reporting.

The Star argued that FIPPA’s application to administrative tribunals restricts access to tribunal adjudicative records, thereby undermining the open court principle and unjustifiably infringing s. 2(b) of the Charter, which provides everyone with the right to “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”1

The Superior Court’s Decision

The Superior Court released its decision on April 27, 2018. Justice Morgan agreed with the Star that FIPPA’s application to quasi-judicial tribunals unjustifiably infringes s. 2(b). He explained that s. 2(b) protects openness and public access to legal proceedings, including access by the press. These principles of openness apply not only to the courts, Morgan J. held, but also to administrative tribunals because, just like courts, these bodies preside over adversarial processes, adjudicate disputes and act quasi-judicially.

Morgan J. determined that the substantive and procedural burdens FIPPA creates in accessing tribunal adjudicative records impinge upon the openness principle and s. 2(b) of the Charter. In particular, Morgan J. concluded that, because FIPPA defines “personal information” in the “broadest possible terms” and then creates a strong presumption against disclosure of such information, FIPPA makes it significantly more difficult for the press and other document requesters to access adjudicative records. This, in turn, interferes with the press and public’s ability to exercise their rights under s. 2(b). Justice Morgan further concluded that FIPPA’s procedural requirements create delays in accessing adjudicative records, which similarly burden freedom of the press and infringe s. 2(b).

In considering whether these infringements were justifiable under s. 1 of the Charter, the bulk of the court’s analysis came, as it often does, at the proportionality stage. In assessing whether the infringing portions of FIPPA minimally impaired s. 2(b), Morgan J. outlined the key questions: (1) Does the reverse onus on producing personal information minimally impair s. 2(b)? (2) Do the timelines and wait periods built into the statute’s access to information process minimally impair s. 2(b)?

Addressing the substantive provisions first, Morgan J. concluded that an across-the-board presumption against disclosure could not amount to a minimum impairment of s. 2(b). Justice Morgan further held that the deleterious effects of the presumption against disclosure outweighed any of its salutary effects. Justice Morgan found “no real evidence” to support the Attorney General’s submission that removing FIPPA’s privacy protections would have a chilling effect on tribunal applications.

Justice Morgan reached a different conclusion with respect to FIPPA’s procedural requirements, holding that such requirements minimally impair s. 2(b). FIPPA’s notice provisions and timeline requirements help to ensure that the system operates fairly, Morgan J. explained. Further, where inordinate delays have occurred, the evidence suggested that the problem originated with particular decision-makers, rather than the statutory scheme itself. While Morgan J. recognized that the cumbersome process might be frustrating, he quipped: “bureaucracy in and of itself is not a Charter violation. It’s just annoying.” The court did make it clear, however, that going forward, should a particular decision-maker’s delays unjustifiably undermine a requester’s rights under s. 2(b), “the Superior Court retains jurisdiction to fashion an ‘appropriate and just’ remedy for the aggrieved rights holder under s. 24(1) of the Charter, or to impose an administrative law remedy.”

Notably, in deciding that FIPPA’s procedural requirements were justifiable under s. 1, Morgan J. paid heed to the Ontario Judicial Council’s (OJC) forceful submission that the court ought to be “cognizant of the complex task of fashioning a disclosure system for a very diverse body of administrative institutions.” The OJC explained that some administrative tribunals have “full- time members that sit in formal hearings dealing with substantial commercial matters” while others “sit in more informal proceedings dealing with highly sensitive matters going to personal autonomy of the participation individuals” while still others “hold hearings on social justice and welfare issues for unrepresented and often unsophisticated litigants.” The Attorney General similarly warned that unregulated access to tribunal records would result in an “unwieldly burden” on adjudicators, particularly for those tribunals that are sparsely staffed and under- resourced. These considerations were central to Justice Morgan’s conclusion that FIPPA’s procedural requirements ought to be upheld.

Practical Implications

By way of remedy, Morgan J. declared that FIPPA’s presumption of non-disclosure of personal information, as it pertains to adjudicative records, was of no force or effect.2 He left in place the processes FIPPA establishes for determining access to adjudicative records. While the court’s formal declaration was limited to certain administrative tribunals, Morgan J. made it clear that his ruling applies to “requests for Adjudicative Records from the [14] intuitions named in [the Star’s Application] and, by extension, any other analogous institution listed in the Schedule to FIPPA that operates in an adjudicative capacity and that holds Adjudicative Records.”

So what will happen now when the press or a member of the public requests access to adjudicative records held by an administrative tribunal?

The process is unlikely to change. As Morgan J. explained: “for those Tribunals that adhere to the FIPPA regime, the ruling here leaves intact the procedural system established under that legislation. That is, the decision-making authority of the institution heads and, on appeal, the [Information and Privacy Commissioner], is not rendered inoperative. Likewise, the various notice provisions and timeliness contained in the legislation are upheld, provided they are not unduly extended for any given decision (which, as indicated earlier, would have to be challenged on a case by case basis).”

Substantively, the considerations and presumptions will differ. Whereas before there was a presumption against disclosure of personal information, now the presumption will favour openness and disclosure. More specifically, Morgan J. held that the Dagenais/Mentuck test3 should apply, urging administrative tribunals to adapt the test to their “own particular contexts and needs”.

Justice Morgan suspended his declaration of invalidity for 12 months, in order to provide the legislature with time to re-work the relevant portions of FIPPA or, alternatively, to provide institution heads and the IPC with time to “establish a principled, tribunal-specific and context- specific basis for adapting the Dagenais/Mentuck test in response to requests under FIPPA for access to adjudicative records.”

Only time will reveal exactly how Ontario’s legislature and administrative tribunals will respond to this shift.

1 The Star challenged the application of FIPPA to the following 14 administrative tribunals: the Ontario Securities Commission (OSC), the Environmental Review Tribunal (ERT), the Ontario Civilian Police Commission (OCPC), the Human Rights Tribunal of Ontario (HRTO), the Ontario Municipal Board (OMB), the Financial Services Tribunal (FST), the Health Professions Appeal and Review Board (HPARB), the Landlord and Tenant Board (LTB), the Criminal Injuries Compensation Board (CICB), the License Appeal Tribunal (LAT), the Ontario Energy Board (OEB), the Ontario Mining and Lands Commissioner (OMLC), the Ontario Labour Relations Board (OLRB), and the Pay Equity Hearings Tribunal (PEHT). The Star had originally also challenged FIPPA’s application to the Workplace Safety and Insurance Appeals Tribunal (WSIAT), but later abandoned that claim. Notably, the evidence demonstrated that access to adjudicative records from eight of the fourteen tribunals was readily granted without a formal FOI request. Justice Morgan therefore held that these tribunals already act in compliance with the openness principle and that “unless and until the Toronto Star’s (or anyone else’s) rights are infringed by the eight non-FIPPA applying tribunals, there is nothing further to analyze in respect of them.” The eight tribunals that bypass the FIPPA process are the OEB, ERT, OMB, OMLC, OCPC, LAT, FST and the OSC.

2 Importantly, the court’s ruling relates to “adjudicative records” alone. Adjudicative records are those materials that form part of the record of a tribunal hearing, including: any application, complaint or other document by which a proceeding is commenced; the notice of hearing; a tribunal’s interlocutory orders, if any; all documentary evidence that becomes part of the record of the hearing; transcripts of oral evidence, if any; the tribunal’s decision and reasons, if any; and tribunal dockets and schedules.

3 The Dagenais/Mentuck test permits restrictions on the open court principle when: “(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and (b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice”: see Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835 and R v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442.