CJFE intervenes in Toronto Star case to promote transparency in administrative tribunals

Thursday, March 08, 2018
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Journalists face numerous barriers when attempting to access information about what goes on behind the doors of tribunal hearing rooms. Now CJFE is intervening in a court case that could end secrecy in Ontario’s tribunals.


On February 6, 2017, the Toronto Star filed a challenge under the Canadian Charter of Rights and Freedoms seeking to combat the lack of transparency that presently surrounds provincial administrative and quasi-judicial tribunals.


The Freedom of Information and Protection of Privacy Act (FIPPA) currently governs administrative tribunals. This means that individuals who wish to obtain information or records related to closed tribunal proceedings must file Access to Information and Privacy (ATIP) requests.


The Toronto Star has submitted that governing these tribunals under the bounds of FIPPA represents an unjustifiable infringement of freedom of expression and freedom of the press under s. 2(b) of the Charter. Given that the function of tribunals is adjudicative, tribunal proceedings and records are arguably subject to the open court principle, a constitutionally entrenched and widely recognized democratic principle that requires judicial proceedings to be presumptively open to all who wish to access them. Yet unfortunately, because of FIPPA, much of what goes on in tribunals in Ontario remains out of the public eye.

Ending Secrecy

CJFE wholeheartedly supports the Toronto Star’s position, which is why we are intervening in this matter. The current regulatory framework surrounding administrative tribunals in Ontario allows for high levels of secrecy and and unwarranted delays in obtaining information that is well within Canadians’ rights to access. The threat this framework poses to free expression, freedom of the press, and access to information should not be understated.


Preserving the transparency and accountability of administrative tribunals is of high priority given their important function. Administrative tribunals are tasked with settling matters between the provincial government and its citizens — from pay equity to workplace safety to human rights, the cases they hear are highly impactful and keenly relevant to the lives of those who reside within the province.


There is thus a strong public interest in making this information accessible, thereby enabling the media to hold tribunal decision-makers accountable. As is the case with other adjudicative proceedings in the province, the decisions made in tribunal proceedings, and the reasons and evidence on which they are based, demand scrutiny.


Yet at present, thanks to FIPPA, individuals are forced to navigate a bureaucratic, time-consuming, and expensive system in order to obtain the information they are legally entitled to. The ATIP system itself is struggling and overburdened, resulting in substantial delays that can compromise the usefulness or salience of the information in question by the time it is finally released. Even through this process, only a portion of the information requested is ultimately made available to the public. Meanwhile, FIPPA grants the Privacy Commissioner a sweeping ability to prevent the release of any “personal information” within tribunal records — meaning that the majority of records come back heavily redacted, and many requests are denied altogether.


Unnecessary delays and redactions prevent journalists from being able to serve as effective public informants, and from being able to relay complex legal information in a way that is accessible — a public service that is sorely needed in the midst of a highly untransparent system. While there may be cases in which the personal privacy of individuals involved warrants limiting the information released, the sheer volume of requests that are redacted or refused altogether at present runs contrary to the spirit of an open and transparent judicial system.


Requiring administrative tribunals to abide by the open court principle means respecting our constitutional rights. Join CJFE in supporting the Toronto Star in this proceeding: important legal decision-making should not be conducted behind closed doors.

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