Teresa Scassa - Blog

Tuesday, 16 April 2019 07:55

Ontario's Budget Bill Proposes a Fix to an Unconstitutional Clash between Privacy and Open Courts

Written by  Teresa Scassa
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As discussed in my earlier posts here and here, Ontario’s new budget bill contains quite a number of measures related to digital, data and privacy issues. In this third post I look at the proposed new statute that will balance privacy with the openness of provincial tribunal adjudicative records.

This new statute responds to the decision in Toronto Star v. AG Ontario, discussed in an earlier post here, in which Justice Morgan of the Ontario Supreme Court ruled that Ontario’s Freedom of Information and Protection of Privacy Act (FIPPA) breached the right to freedom of expression under s. 2(b) of the Canadian Charter of Rights and Freedoms. It did so because of the way in which it applied to administrative tribunals in respect of requests for access to their adjudicative records. Some tribunals to which FIPPA applied required those seeking access to adjudicative records to file access to information requests. What breached the Charter right was the presumption in FIPPA that personal information could not be disclosed unless one of the statutory exceptions applied. This was found to clash with the open courts principle. Justice Morgan suspended the declaration of invalidity of the legislation for one year in order to give the government time to fix the problem. The year is up later this month; it is therefore not surprising that this legislative change has found its way into the omnibus bill.

The Tribunal Adjudicative Records Act, 2019 provides, as a default principle, that the adjudicative records of tribunals prescribed by regulations enacted under this statute are to be made available to the public (s. 2(1)). The definition of adjudicative records in s. 1(2) is quite broad and includes transcripts of oral evidence, documents admitted in evidence, and reasons for decision. Adjudicative records expressly do not include personal notes or draft decisions, or records related to attempts to resolve matters through alternative dispute resolution procedures.

The obligation to disclose adjudicative records will be subject to any confidentiality orders that the tribunal might make (s. 2(2)). A confidentiality order in relation to personal information can be issued where:

2(3)(b) 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.

A confidentiality order may be applied for by a party to the proceedings or by a person who would be affected by the disclosure of the information at issue (s. 2(3)).

Section 3(1) gives tribunals the authority to make rules governing their own procedures relating to providing access or issuing confidentiality orders. Under s. 4, tribunals are, with ministerial permission, entitled to charge fees for access to their adjudicative records. The new statute also provides for consequential amendments to FIPPA that will exclude the application of that statute to “personal notes, draft decisions, draft orders and communications related to draft decisions or draft orders that are created by or for a person who is acting in a quasi-judicial capacity. It also excludes the application of FIPPA to adjudicative records covered by the new statute.

This new statute resolves the constitutional issues at the heart of the Toronto Star decision. It does not, however, resolve other issues related to privacy and administrative tribunal decisions that have long been the subject of debate and discussion. In a recent Ontario case, for example, the personal information of third parties to a matter before the Ontario Human Rights Tribunal ended up in the tribunal’s decision. While the new Tribunal Adjudicative Records Act will allow third parties to apply for confidentiality orders, it is not clear how such individuals will know in advance that their personal information might be published. Further, many administrative tribunals deal with highly sensitive matters involving personal health or financial information. While they are urged to take privacy into account in the drafting of their decisions and in the amount of personal information shared, the trend towards providing broader access through online publication of decisions is leading to greater privacy risks for individuals that may not be properly balanced against the open courts principle. It would have been good to see in this new statute some recognition of the importance of these issues. Administrative tribunals are not courts, and government would not unduly interfere with their independence by stating in law that the disclosure of personal information should be minimized to only that which is clearly necessary to explain the reasons for decision, or by limiting the disclosure of some personal information in versions of decisions published online.

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