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Brief reflections on Toronto Star and the access to tribunal records issue

Dan Michaluk, Hicks Morley1

There’s hardly more painful and expensive litigation than litigation about whether
unstructured data – data in e-mails and other collections of miscellaneous records –
ought to be accessible to the public.

This knowledge causes me to be concerned about the Ontario Superior Court of
Justice’s April 2018 in Toronto Star v. AG Ontario.2 I express this concern from the
perspective of a practitioner who’s handled a good number of large document freedom
of information and data recovery matters for public institutions (that have invited line-
by-line and even word-by-word litigation) and who’s appeared before the Human
Rights Tribunal of Ontario and the Ontario Labour Relations Board on behalf of
respondent organizations.

These are quick reflections, and I’m open to be criticized for my generality. My aim,
though, is only to give food for thought.

Here are my legal and practical concerns.

Legal concerns

I viewed Toronto Star decision as vulnerable, and was surprised the government elected
not to appeal.

The questions that continue to weigh on me since first reading the decision are: (a) Just
how do we get to an all-encompassing constitutional right of access to Tribunal records?
and (b) Why can’t the legislature let the balancing be done by an expert Tribunal?

Just how do we get to an all-encompassing constitutional right of access to Tribunal records?

The Supreme Court of Canada held that section 2(b) of the Charter can support a right of
access to government records in Ontario (Public Safety and Security) v. Criminal Lawyers'
Association.3 It said:

In sum, there is a prima facie case that s. 2(b) may require disclosure of
documents in government hands where it is shown that, without the
desired access, meaningful public discussion and criticism on matters of
public interest would be substantially impeded. As Louis D. Brandeis

1Information and privacy and data/cyber security lawyer. With special thanks to our newest privacy
associate Matin Fazelpour for his insightful comments.
2 2018 ONSC 2586 (CanLII) (“Toronto Star”).
3 [2010] 1 SCR 815, 2010 SCC 23 (CanLII).

famously wrote in his 1913 article in Harper’s Weekly entitled “ What
Publicity Can Do”: “Sunlight is said to be the best of disinfectants ... .”
Open government requires that the citizenry be granted access to
government records when it is necessary to meaningful public debate on
the conduct of government institutions.

If this necessity is established, a prima facie case for production is made
out. However, the claimant must go on to show that the protection is not
removed by countervailing considerations inconsistent with production.4

Note the conservatism in this statement. There’s a necessity requirement. The right also
may be negated by “countervailing considerations.”

In Toronto Star, the Court jumps too quickly to recognize an unbounded Charter right –
one applying to all tribunals, to all information, in all “adjudicative records” and in all
circumstances. There is virtually no discussion about whether the open courts principle
ought to apply to administrative tribunals. What’s “necessary to meaningful public
debate” in the context? Ought we value openness in administrative justice to the same
degree we do in our civil and criminal justice systems?

The Court does not address these questions in recognizing a right of expression. Rather,
its application of the open courts principle appears to be derived from a provision
requiring openness in the Statutory Powers Procedure Act:

All parties acknowledge that administrative hearings governed by the
Statutory Powers Procedure Act (“SPPA”) are required to be open to the
public. In principle, therefore, it is uncontroversial that “[t]he ‘open court’
principle” – at least in some version – “is a cornerstone of accountability
for decision-making tribunals and courts.”5

One might argue that the Court elevates a statutory presumption (which ought to be
read in harmony with FIPPA) into a constitutional right. One might also argue that
there are policy imperatives for administrative justice that weigh against recognition, in
respect of tribunals, of the same level of openness that applies to courts – expediency
and ease of access, for example. These two imperatives in particular are likely to suffer
if administrative tribunal records are treated similarly to court records.

Why can’t the legislature let the balancing be done by an expert Tribunal?

The Court’s decision rests on what it says is a flawed “presumption of non-disclosure” –
one that makes personal information in adjudicative records presumptively

4 Ibid, paras 37, 28.
5 Toronto Star, supra, para 6.

inaccessible. According to the Court, this presumption arises out of the framing of
FIPPA’s section 21 “unjustified invasion of privacy exemption,” which states that
personal information shall be withheld unless its disclosure would not constitute an
“unjustified invasion of privacy.”

It is too strong to call this a presumption, particularly in light of section 53 of FIPPA,
which states, “Where a head refuses access to a record or a part of a record, the burden
of proof that the record or the part falls within one of the specified exemptions in this
Act lies upon the head.” To the contrary, all records in an institution’s custody or
control are presumptively accessible under FIPPA, with limitations on the right of
access dictated to be “limited and specific” as stipulated FIPPA’s purpose provision.

It’s quite arguable that FIPPA grants a right of access subject to a balancing of interests
that has been carefully calibrated by the legislature and ultimately governed by an
expert tribunal – the Information Privacy Commissioner/Ontario. Such a structure is
moderate and inoffensive to expression rights – inviting expert decision-making on a
difficult policy matter, exactly the type of decision-making enabled by our by our
administrative justice system and protected by the principle of deference. Justice
Morgan, though, may have reached his conclusion because he felt the IPC unworthy of
its role and the deference that it entails. He commented, “In terms of the expertise of the
institution heads and, in particular, the IPC, it is fair to say that the jury is still out. ”6

Practical concerns

While I don’t believe FIPPA features a privacy-based presumption against access to
Tribunal records, the privacy protection enjoyed by individuals in light of both the
statute and the IPC’s interpretation of the statute was certainly strong. In practice, this
strong protection supported access to Tribunals and discouraged disputes about
openness. If restrictive, the law was at least clear.

Post Toronto Star, that strong protection is blown away. It could (and should) be
supplanted with a tweaked FIPPA regime. Or, worse, adjudicative records could simply
be defined and then excluded from FIPPA – leaving no more role for the expert tribunal
(the IPC) and leaving other tribunals to deal with a presumptive right of access and the
vagaries of the Dagenais/Mentuck test – a test that strongly demands openness unless
confidentiality is:

necessary in order to prevent a real and substantial risk to the fairness of
the trial, because reasonably available alternative measures will not
prevent the risk; and

6 Ibid, para 100.

the salutary effects of the [the limitation on openness] outweigh the
deleterious effects to the free expression of those affected by the
[limitation] 7

In Toronto Star the Court rejected the Attorney General’s argument that
Dagenais/Mentuck was inappropriate to tribunals, stating “Each can adapt the
Dagenais/Mentuck test its own particular needs…”8

This is an invitation to litigation. Tribunals will struggle with the test, which is too
calibrated to openness to deal with the “countervailing considerations” unique to
administrative justice. There will almost certainly be applications to review interim
orders and it will be a long time before we have any certainty about how
Dagenais/Mentuck applies in the administrative context.

Uncertainty, in return, will discourage individuals with grievances about sensitive
matters from pursuing administrative justice. If I’m potentially faced with the same
openness as a court proceeding, why don’t I just sue? Maybe I shouldn’t pursue my
complaint at all?

Respondents also face an uncertain loss of confidentiality, but may be most concerned
about the potential cost of dealing with openness – a new cost in procedures that are
meant to be cost effective and that do not provide for cost recovery. In an ideal case,
complainant, respondent and Tribunal will all agree on what information in filings is
confidential and ought to be protected. In other cases, there will be costly disputes
about records and information in records. Will parties be driven to request sealing
orders in advance of filing? Must the media be given notice of determinations about
confidentiality? In what circumstances?

September 25, 2018

7 R v Mentuck, [2001] 3 SCR 442, 2001 SCC 76, para 23 (CanLII).
8 Ibid, para 135.