Tag Archives: open courts

Ontario Court says FOI statute fails in providing access to administrative tribunal records

29 Apr

Yesterday the Ontario Superior Court of Justice held that the Ontario Freedom of Information and Protection of Privacy Act violates section 2(b) of the Charter because it goes too far to protect the privacy of parties, witnesses and others in matters heard by the Ontario Human Rights Tribunal, Ontario Labour Relations Boards and other statutory tribunals.

The Toronto Star brought the Charter application. It argued that the access regime created by FIPPA is too restrictive and too slow to meet its Charter-based right of access to “adjudicative records” – records of things filed before tribunals like pleadings and exhibits as well as tribunal decisions. A number of Ontario tribunals process requests for adjudicative records formally under FIPPA while others provide access more informally. The Star argued that the informal process must be the norm.

Justice Morgan allowed the application and declared that FIPPA violates the Charter by imposing a presumption of non-disclosure of “personal information” in adjudicative records. It is a puzzling decision for two reasons.

First, there is virtually no discussion about whether the open courts principle ought to apply to administrative tribunals. The Court’s 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.”

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.

Second, 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 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. Justice Morgan did not hide his views about the IPC, stating “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. ”

 Toronto Star v. AG Ontario, 2018 ONSC 2586.

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Court sends matter back to arbitrator to consider redaction request

22 Sep

On September 13th, the Federal Court of Appeal held that the Public Service Labour Relations and Employment Board was not functus officio and ought to have entertained an employer’s request to redact witness names.

The employer claimed it made an unopposed request to obscure the identities of several non-union witnesses during the Board’s hearing. When the Board issued a decision that included full names, the employer wrote the Board and asked for a correction. The Board disagreed that the employer had made a request during the hearing and held it was functus officio. The employer brought an application for judicial review, compounding the problem by filing an un-redacted copy of the decision on the Court’s public record.

The Court accepted affidavit evidence from the employer and held that it had, in fact, made an unopposed request during the hearing. Alternatively, the Court held that the Board had the power to amend its decision based on section 43 of the Public Service Labour Relations Act. The Court also ordered that its record be treated as confidential and that the applicant file new materials with witness names replaced by initials, stating, “So doing provides little, if any, derogation to the open courts principle as [the witnesses’s] identities are not germane to the decisions.”

This is an unfortunate example of (a) rising sensitivities regarding the inclusion of personal information in judicial and administrative decisions and (b) the need to be careful about it. This affair (which shall continue) could have been avoided if the parties had asked the Board to make a formal order during course of the hearing. The employer also ought to have brought a motion for a sealing order at the outset of its judicial review application, before filing un-redacted materials (a point that the Court made in its decision).

Hat tip to Ian Mackenzie.

Canada (Attorney General) v Philps, 2017 FCA 178 (CanLII).

Court won’t redact or take down its decision

15 Sep

On September 7th, the Court of Appeal for British Columbia dismissed an application to have part of its reasons redacted or to have the reasons withdrawn from the Court’s website. 

The applicant believed that part of the reasons – released in 2004 – were harmful to his reputation, a problem he said was facilitated by internet search. The Court dismissed the application because redaction would offend the principle of finality. It held that redaction alone would effectively amount to an amendment of the Court’s (substantive) conclusions. (This is a non-obvious point of principle of some significance.) The Court also relied on the open courts principle, which it affirmed. 

MacGougan v. Barraclough, 2017 BCCA 321 (CanLII).

BCCA says arbitrators have discretion to identify grievors despite PIPA

15 Aug

On August 12th the Court of Appeal for British Columbia held that British Columbia labour arbitrators are bound by British Columbia’s provincial private sector privacy legislation but do not need consent to collect, use or disclose grievor and witness personal information.

This was an appeal of a decision by Arbitrator Lanyon issued in October 2013. Mr. Lanyon dismissed a union claim that the Personal Information Protection Act prevents arbitrators from disclosing personal information of individuals in a final decision without their consent. Mr. Lanyon made his decision on multiple bases, perhaps because the union had put him on notice that it would appeal any unfavourable decision!

The Court of Appeal’s decision is much more simple. It held that PIPA applies to labour arbitrators when the term “organization” is read purposely. It then held that disclosure without consent is “required or authorized by law” based on a provision in the Labour Relations Code that requires arbitrators to file a copy of their awards for publication. Although this provision does not specifically require the filing of an award that includes personal information, the Court said:

It is difficult to see how a decision-maker, who is obliged to provide reasons that are subject to various levels of review, could possibly avoid disclosing personal information, as required by PIPA. The suggestion of the Union of using initials would not, in many cases, comply with the requirements of PIPA.

Arbitrators, the Court noted, have a discretion to use initials of parties or witness to protect privacy interests or “however they see fit.”

This is a matter in which the outcome reached by Mr. Lanyon and the Court of Appeal is very sensible and supportable on a policy-based analysis. One may question, however, whether the Court of Appeal’s simplistic basis for determining the matter is open to attack.

United Food & Commercial Workers Union, Local 1518 v Sunrise Poultry Processors Ltd, 2015 BCCA 354 (CanLII).

BC arbitrators embrace openness in face of broad request for grievor annonymity

31 Dec

Two British Columbia arbitrators have held that, despite British Columbia PIPA, shielding a grievor’s identity from the public is an exception to the general rule of openness.

Both cases involved discharge grievances brought by the United Food and Commercial Workers, Local 1518. The Local argued that grievor identities should not be revealed in an arbitration award without individual consent. It based its argument on the consent requirement in British Columbia PIPA and, alternatively, by arguing that anonymity should be the default in a proper exercise of arbitral discretion.

Arbitrator Sanderson issued a brief award on July 22nd. He concluded that the shielding of a greivor’s identity is a matter within an arbitrator’s discretion notwithstanding British Columbia PIPA. Arbitrator Sanderson also held that “the open court principle should prevail in decisions of labour arbitrators” though an anonymity order may be granted as justified based on proof of an “unreasonable impact” on personal privacy.

Arbitrator Lanyon issued an award on October 28th. Like Arbitrator Sanderson, Arbitrator Lanyon held that identification of a grievor is the norm, with a discretion to grant anonymity as otherwise as justified. Arbitrator Lanyon also added:

  • that there is a particular pubic interest in disclosing the identity of those charged with serious disciplinary offences;
  • that an aribtrator’s balancing should be principled, recognizing “the importance of privacy and the difficulties that may arise as a result of publication on the awards on the internet”; and
  • that arbitrators should be open to “lesser protections” in addressing the potential harms associated with publication, at the very least by refraining from publishing sensitive identifying information such as birth dates and social insurance numbers.

Neither arbitrator’s means of resolving the consent requirement in British Columbia PIPA is particularly clear, though both view the issue as governed by arbitral discretion. In applying this discretion, both arbitrators dismissed the Local’s request because it was made as a matter of right and not on any fact-based justification. The Lanyon award indicates that the Local had plans to appeal any award “not in accord with its views of this matter.”

Husband Food Ventures Ltd v United Food and Commercial Workers International Union, Local 1518 (unreported, 22 July 2013, Sanderson).

Sunrise Poultry Processors Ltd v United Food & Commercial Workers, Local 1518, 2013 CanLII 70673 (BC LA, Lanyon).

[Note also that most recent Advocate’s Quarterly (vol 42, 2013) has an article entitled The Protection of Privacy Interests in Administrative Adjudication in Ontario by Chris Berzins, who has written often on this topic. Chris’s most recent article calls on the Ontario/IPC to give better guidance to Ontario administrative bodies on how to to address the privacy issues related to the publication of decisions as well as other privacy issues related to their adjudicative proceedings.]

Judicial notice of risk of identity theft justifies a partial publication ban or redaction, but that’s it

21 Aug

On August 16th, the Nova Scotia Court of Appeal overturned an order that sealed the record in a matrimonial dispute and substituted an order that favored either a partial publication ban or redaction (at the parties’ option). The case is notable because the substituted confidentiality order was only based on judicial notice of the risk of identity theft that would flow from the misuse of certain kinds of personal information.

The matter is about access to the court file in a Nova Scotia proceeding. The parties resisted a media organization’s request for access, without adducing any evidence, based on an asserted concern about identity theft. The motion judge recognized the risk, held that a partial publication ban could not be policed and held that a redaction order would be cumbersome and costly. She ordered the court file to be sealed in whole.

In overturning the sealing order, the Court of Appeal stressed that a confidentiality order must be established by evidence or by facts that are properly subject to judicial notice. In this regard, it accepted that identity theft is a risk that can be recognized on judicial notice. The Court said:

I accept that judicial notice may be taken of the social fact that “identity theft is real”, in the judge’s words.

I also accept that access to (1) unique personal identifier numbers, namely passport or Social Insurance Numbers, Health Insurance Card or driver’s licence numbers, (2) credit or debit card numbers, (3) unique property identifier numbers, namely numbers for bank accounts or other investment assets or for debt instruments or insurance policies, and serial or registration numbers for vehicles, may assist the use of identity theft to fraudulently access property.

I also accept that (4) dates of birth, (5) names of parents, (6) personal addresses, (7) email addresses and (8) telephone numbers sometimes may not already be in the public domain, and therefore access to that information in a court file possibly could assist with identity theft. I add that this record has no evidence one way or the other whether that information, for Mr. Jacques or Ms. Foster-Jacques, already is in the public domain.

The Court said the motion judge was wrong, however, to find that a partial publication ban could not be policed and that a redaction order would be cumbersome and costly. It held that there was no evidence to support these findings, which rested on judicial notice of dispositive adjudicative facts.

The Court substituted an order that let the parties opt to redact the information set out in the paragraphs quoted above, failing which, the media would be subject to a prohibition on publishing the same information. While stressing the importance of a firm evidentiary foundation for confidentiality orders, this judgment also suggests that a limited confidentiality order to protect against the disclosure or publication of personal information that is commonly used to establish one’s identity should not be difficult to obtain.

Coltsfoot Publishing Ltd v Foster-Jacques, 2012 NSCA 83 (CanLII).

[Hat tip to Peg Duncan of IT and eDiscovery.]

Case Report – Search warrant indexing challenge to proceed without Attorney General as respondent

7 Aug

On July 27th, Moir J. of the Nova Scotia Supreme Court issued a preliminary ruling in a novel Canadian Broadcasting Corporation application in which it is seeking an order requiring the Nova Scotia Provincial Court to index its search warrants based on the open courts principle and the Charter.

In his preliminary ruling, Moir J. held that the Attorney General, as a representative of the executive branch of government, was not a proper respondent because the executive cannot control the judiciary’s records. Though acknowledging that the application “seems to concern a clerical, or mechanical, function,” he held that the matter, in its essence, concerns the sufficiency of access to records in order to satisfy the open courts principle. Moir J. held that the application can continue with the Chief Judge of the Provincial Court as a respondent and the Attorney General, as financial supporter of the judiciary, as an affected party.

Canadian Broadcasting Corporation v. Nova Scotia (Attorney General), 2010 NSSC 295 (CanLII)