Oct 15, 2020

Timely Access to Discipline Hearing Exhibits

Toronto Star v. AG Ontario, 2018 ONSC 2586 (CanLII)

Last year, in upholding the constitutional right of the public, including the media, to obtain copies of exhibits filed in hearings, Justice Morgan said:

Generally speaking, it is essential in a system that protects free expression and the press that “the media…should not have their right to report on proceedings…delayed for any greater period of time than a court believes is absolutely necessary”. Just as justice delayed can be justice denied, so reportage delayed can be reportage denied. [citations omitted]

In that case, Toronto Star v AG Ontario, 2018 ONSC 2586, <http://canlii.ca/t/hrq6s>, the Court did not prescribe a minimum period for providing access, assuming that once the right of access (with rare exceptions) was entrenched, delays should be significantly reduced.

However, in a recent article in Toronto Life magazine, the author objected to a process of having to make a request in writing that resulted in an eight week wait for access to the exhibits: https://torontolife.com/city/greed-betrayal-medical-misconduct-north-york-general/. The writer contrasted that experience with obtaining exhibits from a court hearing, which was generally automatic and prompt.

Since discipline hearings often involve marking confidential client files as exhibits, including health charts, many discipline panels require a motion in writing, with an opportunity for both parties at the hearing to make submissions, sometimes followed by advice from independent legal counsel, before exhibits are released. [The exception may be if the request is made at the hearing itself when everyone is present to speak to the matter.] Given Justice Morgan’s comments, what is a reasonable time frame for access to be granted?

There are at least two options for speeding up the process:

1. Expedite the request, submissions and decision process. However, this option would likely still take about 30 days even in routine cases with very short turnaround times for submissions and advice.

2. Change the assumptions. The discipline panel could require parties to assert any concerns about public access to the exhibit at the time that they were filed at the hearing. In the absence of a request, the exhibit is presumed to be public. This is similar to how courts often operate.

The second option would impose an obligation that could take up time in many discipline hearings when the reality is that very few requests for access to exhibits are made. In addition, one can foresee oversights occurring resulting in very sensitive exhibits being made public automatically.

With increasing expectations of prompt access to hearing exhibits and with more tribunals considering online hearing documents, regulators and discipline panels will have to grapple with this issue more frequently.