Pub Bans and Sealing Orders

Toronto Star v AG Ontario 2018 ONSC 2586

This case challenges the application of the Freedom of Information and Protection of Privacy Act (“FIPPA”) to 14 administrative tribunals in Ontario, all of which are designated as “institutions” in the Schedule to the FIPPA General Regulation.

Among other things, FIPPA sets out terms on which access is granted to documents held by government and wider public sector institutions. The Toronto Star contends that by applying to tribunals that preside over adversarial processes, adjudicate disputes, and act judicially or quasi-judicially, FIPPA violates the open courts principle embedded in s. 2(b) of the Canadian Charter of Rights and Freedoms (the “Charter”).

The question in this Application is whether and how the open courts principle applies to contemporary administrative law proceedings.

All parties acknowledge that administrative hearings governed by the Statutory Powers Procedure Act (“SPPA”) are required to be open to the public.

The present controversy arises with respect to documents filed with administrative tribunals that hold adjudicative hearings. More specifically, the issue posed in this Application challenges the means by which such documents are accessed by the press outside of the adjudicative hearing itself.

The FIPPA regime commences on a premise that simultaneously embraces openness and closure. Section 10(1) provides that “every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless, (a) the record or the part of the record falls within one of the exemptions under sections 12 to 22…” Although the provision is phrased in terms of transparency, the exemptions are anything but minor. Counsel for the Toronto Star identifies one exemption in particular that is so broad as to swallow up the initial mandate to disclose records upon request – the personal privacy exemption: “A head shall refuse to disclose personal information to any person other than the individual to whom the information relates” (s. 21(1)).

This prohibition on disclosure of personal information is repeated in Part III of the FIPPA, entitled “Protection of Individual Privacy”. Under that general heading, s. 42(1) provides that, “An institution shall not disclose personal information in its custody or under its control”, except in accordance with a number of listed exceptions. It is fair to say that none of the exceptions to the non-disclosure of personal information exemption in s. 21(1) or s. 42(1), or any of their follow-up sections, pertain to access to Adjudicative Records as a general category.

The evidence collected by the Toronto Star and, indeed, the reported decisions by the IPC regarding production of records, suggests that the personal information exemption is so widely invoked that it has become the rule rather than an exemption to the rule. In effect, decisions about production of records under FIPPA start from the s. 21(1) premise of non-production rather than from the s. 10(1) premise of production.

Adjudicative Records, in particular, are likely to fall within the definition of “personal information”, since they almost inevitably contain personal information identifying the parties, were most often compiled in respect of an investigation into a regulatory breach or other violation of the law, and frequently relate to either welfare benefits, employment, education finances, race or sexuality, etc. Moreover, complaints to regulators, pleadings, and other primary documents filed with tribunals invariably contain opinions by one person about the issue at hand or the opinion of one person about another, making them “personal information” under ss. 2(1)(e) and (g). Differences of opinion are what adjudicated disputes are virtually always about, but their effect is to bring the Adjudicative Records into the s. 21 exemption.

Counsel for the Toronto Star has argued throughout that the Dagenais/Mentuck test is the appropriate one for any tribunal to apply when a request for Adjudicative Records is submitted to it. Counsel for the Attorney General has responded throughout that Dagenais/Mentuck is too high a test and that while it is appropriate for court records it does not take the varying contexts of administrative tribunals sufficiently into account. The case law demonstrates, however, that there is not just one level of analysis applied under that test, and that Dagenais/Mentuck is indeed flexible enough to be adapted by the various adjudicative tribunals to their own particular contexts and needs.

There shall be a declaration that the application of ss. 21(1) to (3) and related sections of FIPPA pertaining to the presumption of non-disclosure of “personal information” to Adjudicative Records held by the institutions named in the Notice of Application infringes s. 2(b) of the Charter and is not justified under s. 1. It is therefore of no force or effect.

The declaration of invalidity of this aspect of FIPPA is suspended for 12 months from the date of this judgment.