In June 2019, the Tribunal Adjudicative Records Act, 2019 (“TARA, 2019”) came into force. This was an important legislative development for those seeking access to justice in Ontario’s administrative tribunal sector, including applicants to the Human Rights Tribunal of Ontario (HRTO).
The TARA, 2019 was the provincial government‘s legislative response to Toronto Star v. A.G. Ontario, 2018 ONSC 2586 (CanLII), an April 2018 decision of the Superior Court of Justice, which found provisions of the Freedom of Information and Protection of Privacy Act (FIPPA) were in violation of section 2(b), the freedom of expression provision, of the Canadian Charter of Rights and Freedoms. The impact of Toronto Star was to make public access to tribunal adjudicative records accessible and analyzed largely in the same way and to the same extent as in the courts. The courts have long recognized the “open court” principle which holds that public confidence in the judicial system is enhanced by openness, transparency and publicity. The TARA 2019, like in the courts, puts the onus on the person seeking to deny public access to tribunal records to justify the departure from this open court principle. Therefore, a tribunal’s adjudictative records, unless expressly exempted, including records at the HRTO, are, in effect, accessible to the public unless the tribunal orders that a record, or part of a record, is confidential and need not be disclosed.
Under section 2(2) of TARA, 2019, in order to treat a record as confidential, that i) matters involving public security may be disclosed; or ii) intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public. Note that the TARA, 2019 will apply to adjudicative records in all proceedings before the HRTO that are commenced on or after TARA, 2019 comes into force (i.e., June 30, 2019).
Recently the HRTO issued its first decision interpreting these provisions of TARA, 2019. In Grange v. Toronto (City), 2019 HRTO 1550 (CanLII), the Toronto Star sought to access HRTO records in case involving a City employee who alleged that the City and other City employees discriminated against her in her employment. The City opposed the Star’s request for the records. The main issue was whether the HRTO should grant an order restricting access to the records under section 2(2).
The HRTO ruled that a confidentiality order was not appropriate. Although the HRTO found the information contained in the records sought by the Toronto Star were personal and sensitive, this was insufficient to override adhering to the open court principle. The HRTO did not satisfy the privacy interests of the City employees named in the HRTO records warranted tipping the balance away from what is described as the “bedrock constitutional principle of openness.” The HRTO noted that decisions to provide adjudicative records without restrictions would have implications for many of the individuals whose information is released, including discomfort, embarrassment and worse. The HRTO further acknowledged that these were very real concerns for those affected. However, the shift to openness means that information which is merely personal or sensitive is not enough on its own.
Grange did not answer every question related to the interpretation of TARA, 2019 but one thing is clear – in this new era of tribunal openness, a person or organization seeking to restrict access to HRTO records faces a heavy burden and a high threshold to deny access where requests are made. Each case is different and will turn on its own facts and must be considered in its own context. However, the open court principle will generally have primacy over the privacy interests of the parties. If making an application to the HRTO or other administrative tribunals, an applicant should be aware that very personal information may be accessed by third parties, including media organizations. It is fair to say that it will require the type of extraordinary circumstances set out in section 2(2) of the TARA, 2019 to justify a departure from the new, as it were, “open tribunal” principle. Sensitive personal information, including names, contact information, medical, financial, educational, or employment information, and any documents submitted to the HRTO as part of the adjudicative process may become public.
Finally, the TARA 2019 authorized the HRTO to make its own rules governing the procedure for access to records but to date the HRTO has not made any specific rules. Note, however, that Tribunals Ontario, of which the HRTO is a member, does have a policy posted that sets out the applicable procedure and is available here.
The text of the TARA, 2019 is available here.
The text of the Regulation providing that certain statutes prevail over TARA, 2019 is available here.