Public Disclosure - Tribunal (LTB)

Caselaw.Ninja, Riverview Group Publishing 2021 ©
Date Retrieved:	2024-11-23
CLNP Page ID:	570
Page Categories:	[Privacy], [Hearing Process (LTB)], [Interference of Reasonable Enjoyment (LTB)], [Tribunal Record Requests (ON)]
Citation:	Public Disclosure - Tribunal (LTB), CLNP 570, <https://rvt.link/5e>, retrieved on 2024-11-23
Editor:	Rstojni
Last Updated:	2023/08/30

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Tribunal Adjudicative Records Act, 2019, S.O. 2019, c. 7, Sched. 60

Assented to May 29, 2019

1 (1) In this Act,

“adjudicative record” means a record referred to in subsection (2); (“document décisionnel”)

“confidentiality order” means an order made by a tribunal under subsection 2 (2); (“ordonnance de confidentialité”)

“tribunal” means an adjudicative tribunal prescribed by the regulations made under this Act. (“tribunal”)

Adjudicative records

(2) Subject to subsection (3), the following are adjudicative records for the purposes of this Act:

1. An application or other document by which a proceeding before a tribunal is commenced.

2. A notice of a hearing before a tribunal.

3. A written submission filed with a tribunal in respect of a proceeding before the tribunal.

4. A document that has been admitted as evidence at a hearing of a tribunal or otherwise relied upon by a tribunal in making a decision or an order.

5. A transcript of oral evidence given at a hearing of a tribunal.

6. A decision or an order made by a tribunal and any reasons for the decision or order.

7. A docket or schedule of hearings of a tribunal.

8. A register of proceedings before a tribunal.

9. Any other record that relates to a proceeding before a tribunal and that is prescribed by the regulations made under this Act.

...

2 (1) A tribunal shall make those adjudicative records in its possession that relate to proceedings commenced on or after the day this section comes into force available to the public in accordance with this Act, including any rules made under section 3.

(2) A tribunal may, of its own motion or on the application of a person referred to in subsection (3), order that an adjudicative record or portion of an adjudicative record be treated as confidential and that it not be disclosed to the public if the tribunal determines that,

(a) matters involving public security may be disclosed; or

(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.

...

7 In the event of a conflict between a provision of this Act and a provision of any other Act or a regulation made under another Act, the provision of this Act prevails unless the regulations made under this Act provide otherwise.

Grange v. Toronto (City), 2019 HRTO 1550 (CanLII)

[21] I accept that there may be some documents in a case file that might not be considered part of the adjudicative record in matters that resolve prior to a hearing. However, the records at issue in this case were before an HRTO adjudicator when she heard a motion to dismiss brought by the respondents. According to the Toronto Star decision, adjudicative records subject to the open court principle include “all documentary evidence filed with the tribunal…”[4] In my view, records filed with the Tribunal and considered for the purpose of a motion constitute evidence and therefore are adjudicative records subject to the open courts principle, even if the matter never proceeded to a hearing on the merits. To hold otherwise would inappropriately shield records from public view in cases that ultimately settle. This would seriously limit public access to Tribunal records and undermine the purpose of the open courts principle.

[22] I therefore find that the Tribunal is required to make the pleadings and the supporting documents available to the requester. I turn now to the City’s request for a confidentiality order.

(...)

Issue 2: Should the HRTO grant an order restricting access to the adjudicative records and, if so, what type of restrictions are appropriate?

(a) Confidentiality orders

[23] Confidentiality orders are orders that restrict or limit the public’s access to tribunal proceedings or to information in tribunal records. These are exceptional orders that are only granted in limited circumstances, given the open courts principle. In considering a request for a confidentiality order the presumption is openness. The onus is on the person seeking to restrict access to reverse the presumption of openness.

[24] The submissions of the City and the Toronto Star in this case addressed the tests for confidentiality orders under common law and the newly enacted TARA.

The common law test

[25] The common law test for overriding the open courts principle – and restricting access – is known as the Dagenais/Mentuck test. Under Dagenais/Mentuck, a publication ban should only be ordered if the following conditions are met:

(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and

(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

[26] As the court noted in the Toronto Star decision, the reasons for overriding the openness principle must pose a serious risk, and not just an inconvenience to the parties or the adjudicative body. Tribunals should apply the Dagenais/Mentuck test flexibly and adapt it to the particular context, taking into account the specific interests engaged and the tribunal’s statutory mandate.

The TARA test

[27] Section 2(2) of the TARA provides tribunals with the ability to issue confidentiality orders to restrict access to adjudicative records. A tribunal can do this on its own motion or on the application of a party to the proceeding or a person who would be affected by disclosure of an adjudicative record. The HRTO is a tribunal prescribed by the regulation made under the Act.

[28] The test for confidentiality orders under the TARA is set out in s. 2(2) of the Act. It allows a tribunal to order that an adjudicative record or portion of an adjudicative record be treated as confidential and that it not be disclosed to the public if the tribunal determines that:

(a) matters involving public security may be disclosed; or

(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.

Under s. 2(4) of the Act, a confidentiality order can apply to adjudicative records regardless of when the proceedings to which they relate were commenced.

R. v. Mentuck, 2001 SCC 76 (CanLII), [2001] 3 SCR 442

...

The first branch of the analysis requires consideration of the necessity of the ban in relation to its object of protecting the proper administration of justice. The concept of “necessity” has several elements: (1) the risk in question must be well‑grounded in the evidence and must pose a serious threat to the proper administration of justice; (2) “the proper administration of justice” should not be interpreted so widely as to keep secret a vast amount of enforcement information the disclosure of which would be compatible with the public interest; and(3) in order to reflect the minimal impairment branch of the Oakes test, the judge must consider whether reasonable alternatives are available, but he must also restrict the order as far as possible without sacrificing the prevention of the risk. Under the second branch of the analysis, the effect of the ban on the efficacy of police operations, the right of the public to freedom of expression, and the right of the accused to a public trial must be weighed.

Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31

21 (1) A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,

(a) upon the prior written request or consent of the individual, if the record is one to which the individual is entitled to have access;

(b) in compelling circumstances affecting the health or safety of an individual, if upon disclosure notification thereof is mailed to the last known address of the individual to whom the information relates;

(c) personal information collected and maintained specifically for the purpose of creating a record available to the general public;

(d) under an Act of Ontario or Canada that expressly authorizes the disclosure;

(e) for a research purpose if,

(i) the disclosure is consistent with the conditions or reasonable expectations of disclosure under which the personal information was provided, collected or obtained,

(ii) the research purpose for which the disclosure is to be made cannot be reasonably accomplished unless the information is provided in individually identifiable form, and

(iii) the person who is to receive the record has agreed to comply with the conditions relating to security and confidentiality prescribed by the regulations; or

(f) if the disclosure does not constitute an unjustified invasion of personal privacy. R.S.O. 1990, c. F.31, s. 21 (1).

(2) A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether,

(a) the disclosure is desirable for the purpose of subjecting the activities of the Government of Ontario and its agencies to public scrutiny;

(b) access to the personal information may promote public health and safety;

(c) access to the personal information will promote informed choice in the purchase of goods and services;

(d) the personal information is relevant to a fair determination of rights affecting the person who made the request;

(e) the individual to whom the information relates will be exposed unfairly to pecuniary or other harm;

(f) the personal information is highly sensitive;

(g) the personal information is unlikely to be accurate or reliable;

(h) the personal information has been supplied by the individual to whom the information relates in confidence; and

(i) the disclosure may unfairly damage the reputation of any person referred to in the record. R.S.O. 1990, c. F.31, s. 21 (2).

(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where the personal information,

(a) relates to a medical, psychiatric or psychological history, diagnosis, condition, treatment or evaluation;

(b) was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;

(c) relates to eligibility for social service or welfare benefits or to the determination of benefit levels;

(d) relates to employment or educational history;

(e) was obtained on a tax return or gathered for the purpose of collecting a tax;

(f) describes an individual’s finances, income, assets, liabilities, net worth, bank balances, financial history or activities, or creditworthiness;

(g) consists of personal recommendations or evaluations, character references or personnel evaluations; or

(h) indicates the individual’s racial or ethnic origin, sexual orientation or religious or political beliefs or associations. R.S.O. 1990, c. F.31, s. 21 (3).

TSL-73760-16-IN2 & TST-74210-16-IN2 (Re), 2017 CanLII 28587 (ON LTB)

1. At the outset of the third day of hearing the Landlord raised a preliminary issue. It stated that the Tenant has placed a copy of an audio recording of the hearing on the internet. The Landlord submits that the Tenant’s conduct is not only inappropriate, but in direct violation of my previous oral direction, dispute resolution officers’ cautions and previous Board members’ orders. The Landlord notes that there are three previous orders that speak to this issue; TST-56836-14 & TST-61644-16_IN[1], TST-56836-14 & TST-61644-16-RV, and TST-56836-14 & TST-61644-16.

2. The Landlord argues that the previous orders make it clear that the Tenant is not permitted to publish a hearing recording on social media. The Landlord notes that in TST-56836-14 & TST-61644-16-RV, Vice Chair Sangmuah reasoned as follows:

If the portion of the hearing posted on YouTube was made available to the Tenant pursuant to Rule 25.2, which I do not find, it was for the purpose of facilitating preparation for further proceedings, including a review or appeal. Board recordings are made available to parties, not the general public. Thus, the Tenant required the express consent of the Board to make the recording available on social media.

15. Due to the Tenant’s abuse of the Board’s process, the Board will refuse to hear the Tenant’s application (TST-74210-16) until such time as he removes any and all audio recordings of Board hearings from the internet. This means that the Tenant will need to remove those recordings from websites such as YouTube. The Tenant is directed to remove the audio recordings on or before March 24, 2017.

Personal Information Protection and Electronic Documents Act (S.C. 2000, c. 5)

2 (1) The definitions in this subsection apply in this Part.

...

personal information means information about an identifiable individual. (renseignement personnel)

...

record includes any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, film, microform, sound recording, videotape, machine-readable record and any other documentary material, regardless of physical form or characteristics, and any copy of any of those things. (document)

...

4 (1) This Part applies to every organization in respect of personal information that

(a) the organization collects, uses or discloses in the course of commercial activities; or

(b) is about an employee of, or an applicant for employment with, the organization and that the organization collects, uses or discloses in connection with the operation of a federal work, undertaking or business.

(2) This Part does not apply to

(a) any government institution to which the Privacy Act applies;

(b) any individual in respect of personal information that the individual collects, uses or discloses for personal or domestic purposes and does not collect, use or disclose for any other purpose; or

(c) any organization in respect of personal information that the organization collects, uses or discloses for journalistic, artistic or literary purposes and does not collect, use or disclose for any other purpose.

(3) Every provision of this Part applies despite any provision, enacted after this subsection comes into force, of any other Act of Parliament, unless the other Act expressly declares that that provision operates despite the provision of this Part.

...

7 (1) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may collect personal information without the knowledge or consent of the individual only if

(a) the collection is clearly in the interests of the individual and consent cannot be obtained in a timely way;

(b) it is reasonable to expect that the collection with the knowledge or consent of the individual would compromise the availability or the accuracy of the information and the collection is reasonable for purposes related to investigating a breach of an agreement or a contravention of the laws of Canada or a province;

...

(d) the information is publicly available and is specified by the regulations; or

(e) the collection is made for the purpose of making a disclosure

(i) under subparagraph (3)(c.1)(i) or (d)(ii), or

(ii) that is required by law

...

(2) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may, without the knowledge or consent of the individual, use personal information only if

...

(c.1) it is publicly available and is specified by the regulations; or

(d) it was collected under paragraph (1)(a), (b) or (e).

...

(3) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is

...

(b) for the purpose of collecting a debt owed by the individual to the organization;

...

(h.1) of information that is publicly available and is specified by the regulations; or

(i) required by law.

Regulations Specifying Publicly Available Information (SOR/2001-7)

1 The following information and classes of information are specified for the purposes of paragraphs 7(1)(d), (2)(c.1) and (3)(h.1) of the Personal Information Protection and Electronic Documents Act:

(a) personal information consisting of the name, address and telephone number of a subscriber that appears in a telephone directory that is available to the public, where the subscriber can refuse to have the personal information appear in the directory;

(b) personal information including the name, title, address and telephone number of an individual that appears in a professional or business directory, listing or notice, that is available to the public, where the collection, use and disclosure of the personal information relate directly to the purpose for which the information appears in the directory, listing or notice;

(c) personal information that appears in a registry collected under a statutory authority and to which a right of public access is authorized by law, where the collection, use and disclosure of the personal information relate directly to the purpose for which the information appears in the registry;

(d) personal information that appears in a record or document of a judicial or quasi-judicial body, that is available to the public, where the collection, use and disclosure of the personal information relate directly to the purpose for which the information appears in the record or document; and

(e) personal information that appears in a publication, including a magazine, book or newspaper, in printed or electronic form, that is available to the public, where the individual has provided the information.

Privacy Act (R.S.C., 1985, c. P-21)

7 Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be used by the institution except

(a) for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose; or

(b) for a purpose for which the information may be disclosed to the institution under subsection 8(2).

8 (1) Personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by the institution except in accordance with this section.

(2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed

...

(l) to any government institution for the purpose of locating an individual in order to collect a debt owing to Her Majesty in right of Canada by that individual or make a payment owing to that individual by Her Majesty in right of Canada; and

(m) for any purpose where, in the opinion of the head of the institution,

(i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or

(ii) disclosure would clearly benefit the individual to whom the information relates.

12 (1) Subject to this Act, every individual who is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act has a right to and shall, on request, be given access to

(a) any personal information about the individual contained in a personal information bank; and

(b) any other personal information about the individual under the control of a government institution with respect to which the individual is able to provide sufficiently specific information on the location of the information as to render it reasonably retrievable by the government institution.

(3) The Governor in Council may, by order, extend the right to be given access to personal information under subsection (1) to include individuals not referred to in that subsection and may set such conditions as the Governor in Council deems appropriate.

...

19 (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any personal information requested under subsection 12(1) that was obtained in confidence from

(a) the government of a foreign state or an institution thereof;

(b) an international organization of states or an institution thereof;

(c) the government of a province or an institution thereof;

(d) a municipal or regional government established by or pursuant to an Act of the legislature of a province or an institution of such a government;

(e) the council, as defined in the Westbank First Nation Self-Government Agreement given effect by the Westbank First Nation Self-Government Act; or

(f) the council of a participating First Nation as defined in subsection 2(1) of the First Nations Jurisdiction over Education in British Columbia Act.

(2) The head of a government institution may disclose any personal information requested under subsection 12(1) that was obtained from any government, organization or institution described in subsection (1) if the government, organization or institution from which the information was obtained

(a) consents to the disclosure; or

(b) makes the information public.

...

69 (1) This Act does not apply to

(a) library or museum material preserved solely for public reference or exhibition purposes; or

(b) material placed in the Library and Archives of Canada, the National Gallery of Canada, the Canadian Museum of History, the Canadian Museum of Nature, the National Museum of Science and Technology, the Canadian Museum for Human Rights or the Canadian Museum of Immigration at Pier 21 by or on behalf of persons or organizations other than government institutions.

(2) Sections 7 and 8 do not apply to personal information that is publicly available.

Courts of Justice Act, R.S.O. 1990, c. C.43

137 (1) On payment of the prescribed fee, a person is entitled to see any document filed in a civil proceeding in a court, unless an Act or an order of the court provides otherwise.

(2) A court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.

(3) On payment of the prescribed fee, a person is entitled to see any list maintained by a court of civil proceedings commenced or judgments entered.

(4) On payment of the prescribed fee, a person is entitled to a copy of any document the person is entitled to see. R.S.O. 1990, c. C.43, s. 137.

Ontario College of Teachers Act, 1996, S.O. 1996, c. 12

Orders preventing public disclosure

32.1 (1) In situations under section 32 or 33 in which the Discipline Committee may make an order that the public, including members of the College, be excluded from a hearing, the Committee may make orders it considers necessary to prevent the public disclosure of matters disclosed at the hearing, including orders banning the publication or broadcasting of those matters. 2016, c. 24, Sched. 2, s. 12.

Same, complaint resolution process

(2) In situations under section 30.1 in which the Discipline Committee may make an order that the public, including members of the College, be excluded from a meeting, the Committee may make orders it considers necessary to prevent the public disclosure of matters disclosed during the disciplinary stage complaint resolution process, including orders banning the publication or broadcasting of those matters. 2016, c. 24, Sched. 2, s. 12.

Witnesses, under 18

(3) The Discipline Committee shall make an order that no person shall publish the identity of, or any information that could disclose the identity of, any person who is under 18 years old and,

(a) is a witness in a hearing;

(b) is the subject of evidence in a hearing; or

(c) is the subject of, or otherwise involved in, a matter referred to a disciplinary stage complaint resolution process. 2016, c. 24, Sched. 2, s. 12.

Same, sexual abuse, sexual misconduct or child pornography

(4) If a matter disclosed at a hearing or during a disciplinary stage complaint resolution process involves an allegation of sexual abuse of a student, sexual misconduct, a prohibited act involving child pornography or a prescribed sexual act, the Discipline Committee shall make an order that no person shall publish the identity of, or any information that could disclose the identity of, the person who was allegedly sexually abused or the subject of the misconduct or prohibited act, on the request of that person. 2016, c. 24, Sched. 2, s. 12; 2019, c. 3, Sched. 3, s. 15.