May 30, 2018

Denial of access to tribunal records violates Charter, Ontario judge rules, affirming "open court" principle

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

May 30, 2018

An Ontario judge has held that certain provisions of Ontario's Freedom of Information and Protection of Privacy Act (FIPPA) that delay or block access to adjudicative records produced by administrative tribunals are unconstitutional. Emphasizing that the "open court" principle is inextricably tied to the right to freedom of expression guaranteed by s.2(b) of the Charter, the judge found that both the presumption of non-disclosure of personal information in FIPPA and the delay resulting from various timelines in the FIPPA amounted to an infringement of s.2(b). While the judge found that the delays in the process were justifiable under s.1 of the Charter as a minimal intrusion on s.2(b) rights, he concluded that the presumption of non-disclosure could not be justified, since privacy concerns are secondary to the "open court" principle. Accordingly, the judge declared the presumption of non-disclosure of personal information invalid, although he suspended the declaration for one year to allow time for the legislature to revise the statute.

The Facts:

An Ontario judge has ruled that certain provisions of Ontario's freedom of information legislation that delay or block access to tribunal records are unconstitutional.

In Ontario, the Freedom of Information and Protection of Privacy Act (FIPPA) sets out the terms on which access is granted to documents held by governments and broader public sector institutions. It applies to all branches of the provincial government and to 182 institutions listed in the Schedule of the General Regulations under FIPPA, including adjudicative tribunals such as the Human Rights Tribunal of Ontario and the Ontario Labour Relations Board. While most tribunal proceedings are open to the public, many institutions require the public, including the media, to file FIPPA requests to access adjudicative records – e.g. applications, notices of hearings, decisions, transcripts, or documentary evidence – before or after a hearing.

While s.10(1) of FIPPA provides that "every person has a right of access to a record or a part of a record in the custody or under the control of an institution," this access is subject to a number of limitations set out in sections 12 to 22. In particular, s.21 states that an institution "shall refuse to disclose personal information to any person other than the individual to whom the information relates," except in accordance with a number of listed exceptions, none of which pertain to adjudicative records as a general category. "Personal information" is defined broadly in s.2(1) to include any recorded information about an identifiable individual. As a result of the personal information exemption, certain tribunals subject to FIPPA refuse most if not all requests for production of records, including adjudicative records, that contain identifying information. While there is a public interest override to the personal information exemption in s.23, it is rarely invoked.

Under s.24(1) of FIPPA, a person seeking access to a record from an applicable institution must make a formal request, pay a prescribed fee, and provide sufficient information for the record to be identified. The head of the institution then has 30 days, which can be extended if necessary, to give notice to any persons affected, allow representations to be made, and decide whether or not to grant the request. A person requesting the record or a person affected by the disclosure may appeal the institution's decision within 30 days to the Information and Privacy Commission (IPC). There are time periods set aside for potential mediation of the dispute, for the IPC to conduct a review of the institution's initial decision, and for the parties to make submissions to the IPC. After receiving all applicable submissions, the IPC is authorized to make a decision disposing of the issues on appeal. Due to the various time periods in the FIPPA process, access to information requests can take weeks or months to process, depending on the nature of the tribunal and the records being sought.

The Toronto Star brought an application challenging the application of FIPPA to 14 administrative tribunals that act in an adjudicative capacity: the Ontario Securities Commission, the Environmental Review Tribunal, the Ontario Civilian Police Commission, the Human Rights Tribunal of Ontario, the Ontario Municipal Board, the Financial Services Tribunal, the Health Professions Appeal and Review Board, the Landlord and Tenant Board, the Criminal Injuries Compensation Board, the License Appeal Tribunal, the Ontario Energy Board, the Ontario Mining and Lands Commissioner, the Ontario Labour Relations Board, and the Pay Equity Hearings Tribunal.

The application alleged that FIPPA burdens the right of access to adjudicative records and violates the "open court" principle embedded in the right to freedom of expression under s.2(b) of the Canadian Charter of Rights and Freedoms in two ways: by limiting access to records containing personal information, since adjudicative records invariably contain personal information about the parties; and by imposing an undue delay in obtaining adjudicative records as a result of the various timelines and notice periods in the FIPPA process. According to the Toronto Star, the personal privacy exemption is so widely invoked that decisions about production of records effectively start from the premise of non-production rather than from the premise of production, and evidence shows that FIPPA requests filed by the Toronto Star result in delays ranging from 10 days to eight months.

The Arguments:

The arguments of the parties are not set out in the decision.

The Decision:

Justice Edward Morgan of the Ontario Superior Court allowed the application, finding that the presumption of non-disclosure of personal information set out in s.21 of FIPPA violates s.2(b) of the Charter and is not justified under s.1.

Emphasizing that the "open court" principle is well-established in the Canadian judicial system, and has been recognized by the Supreme Court of Canada as "one of the hallmarks of a democratic society…[and] is inextricably tied to the rights guaranteed by s. 2(b) of the Charter," Morgan characterized the question before him as: "Do [FIPPA's] substantive terms that weigh access to documents against privacy protection, and its procedural regime by which documents are requested, vetted, and withheld or produced, conform with or undermine the requirement of openness?" Regarding the 14 institutions named in the application, Morgan observed that an administrative body's procedures invariably "depend upon the nature and the function of the particular tribunal," and this translates into varying approaches to openness among the various institutions. Since eight of the institutions did not use any FIPPA process at all, Morgan found that "there is little more to be said about them here. It is certainly the case that their ability to fashion their own mechanism for public access to Adjudicative Records, and to make their own fine-tuned determinations of the correct balance between openness and privacy, fall within the power of those adjudicative institutions to control their own processes." Accordingly, unless and until an individual's rights were infringed by one of these non-FIPPA applying tribunals, there was nothing further to analyze in respect of them.

For the remaining institutions, Morgan observed that the effect of FIPPA's presumption of non-disclosure of personal information was that "the openness principle does not apply as of right to the tribunals governed by the FIPPA process; rather, a person or the press that seeks access to Adjudicative Records bears the onus of establishing that an exception to the non-disclosure of personal information rule applies." Noting that "this is not an insubstantial onus," Morgan found that this statutory imposition of an onus "certainly amounts in the first instance to an infringement on the s. 2(b) Charter right of access to those documents." Likewise, Morgan found that the delay resulting from the FIPPA process "certainly burdens freedom of the press and amounts in the first instance to an infringement on the s. 2(b) Charter right of free expression."

Thus, having found that FIPPA violates s.2(d) of the Charter in two respects, Morgan turned to an analysis of whether FIPPA's limits on freedom of expression are reasonable and justifiable in a free and democratic society under s.1 of the Charter. Applying the well-established test set out in R. v. Oakes, 1986 CanLII 46 (SCC), Morgan found that FIPPA's objective of balancing the openness principle with privacy concerns in an effort to prevent harm is a pressing and substantial objective, and there is a rational connection between the inclusion of adjudicative tribunals in the Schedule to FIPPA and the balancing that the statute aims to engage. However, he found that the presumption of non-disclosure of personal information fails the third part of the Oakes test – i.e. the minimal impairment requirement. Although noting there is no "one size fits all" application of the openness principle, Morgan found that the openness of the system should take primacy over privacy concerns, stating:

An across-the-board presumption such as that embodied in s. 21 of FIPPA, in which privacy and non-disclosure rather than openness and disclosure is the presumptive rule, cannot qualify as a minimum impairment of s. 2(b) of the Charter. The open court principle is the fundamental one and the personal information and privacy concerns are secondary to it. That principle directs administrative tribunals to protect confidentiality only where a party seeking it establishes that it is necessary to protect important interests. Although the decision-maker may be exercising a statutory discretion taking into account the context on a case by case basis, the onus must remain on the party seeking to keep the information from the public rather than the other way around.

Regarding delay, however, Morgan found that the timelines in the FIPPA process are justifiable as a minimal intrusion on s.2(b) rights, remarking that "bureaucracy in and of itself is not a Charter violation. It's just annoying." While there could be individual cases of unjustifiable delay, which could lead to an individual remedy, he found that the impairment is justified on a systemic basis, stating:

[T]he various timelines built into the FIPPA system appear designed to make the system operate fairly. One cannot act judicially in making an access determination without giving notice to affected parties and providing some amount of time for a response. The specific notice and other time periods provided for in FIPPA may or may not be ideal, but there is little evidence that the problems are with FIPPA's terms on their face. Where the evidence in the record shows that there have been inordinate delays, the source of the problems may lie more with the particular administrators or decision makers who extend the FIPPA timelines than with the statutory system itself. Once the reverse onus on personal information is removed, those human delay factors will hopefully be reduced.

Finally, Morgan found that the salutary effects of the reverse onus on personal information do not outweigh the deleterious effects of that measure on the Charter right to openness. In particular, he was not convinced that removing the presumption of non-disclosure of personal information would have a chilling effect on tribunal applications, whereas "emphasizing privacy over openness not only has a negative impact on the press but also affects other stakeholders." In this regard, Morgan noted: "Problematic landlords, police, and other actors, including repeat human rights offenders, vexatious litigants, and the like cannot be discovered by members of the public who have to engage with them."

Turning to remedy, Morgan observed that "the key to a Charter remedy is for the court to address the constitutional violation but to 'refrain from intruding into the legislative sphere beyond what is necessary.'" Accordingly, he declared the presumption of non-disclosure of personal information set out in s.21 invalid, but suspended the declaration for one year to allow time "for the relevant portions of FIPPA to be re-worked should the legislature choose to do so."


In ruling that the presumption of non-disclosure of personal information in FIPPA is unconstitutional, Morgan's decision makes it clear that the "open court" principle takes precedence over privacy concerns. In this regard, he stated:

What is clear from the case law is that it is the openness of the system, and not the privacy or other concerns of law enforcement, regulators, or innocent parties, that takes primacy in this balance. This, then, impacts directly on the onus of proof. In order for an adjudicative system to comply with s. 2(b) of the Charter, "The burden of displacing the general rule of openness lies on the party making the application." As other courts across the country have stated, publicity is the order of things and "any exceptions" – including those specifically provided by statute – "must be substantiated on a case by case basis."

The government has indicated that it does not plan to appeal the decision. "Ontario recognizes that tribunals play a vital role in our justice system," said Ministry of the Attorney General spokesman Brian Gray. "The court has given Ontario 12 months to refine, in accordance with the decision, the balance between openness and the privacy concerns of vulnerable people who share sensitive personal information with tribunals during proceedings." Toronto Star lawyer Paul Schabas called the ruling a "major victory." "The court confirms that these tribunals are not just agents of government, but courts, and need to operate openly, like courts," he said. "This decision will have broad ramifications for all judicial tribunals."