Confidentiality Request (In-Camera Hearing LTB)

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Date Retrieved:	2025-02-24
CLNP Page ID:	2460
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Citation:	Confidentiality Request (In-Camera Hearing LTB), CLNP 2460, <>, retrieved on 2025-02-24
Editor:	Sharvey
Last Updated:	2025/02/02

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The test used by courts for imposing limits on the open court principle provides guidance when considering whether to override the principle that LTB hearings should be open to the public: Toronto Star at paras. 89-93. The test was recently recast by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25. The Court held that a person seeking to limit the open court presumption must establish that:

(1) court openness poses a serious risk to an important public interest;

(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,

(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

Dagenais v. Canadian Broadcasting Corporation, 1994 CanLII 39 (SCC)

...

Freedom of expression is a right fundamental to democratic society. Accordingly, this Court has taken the view that the ambit of the right must be generously interpreted, going so far as to hold that even hate propaganda falls within the guarantee. Limitations on the guarantee may not be assumed; as a general rule, they must be justified, under s. 1 of the Charter.

The expression at issue on this appeal -- the right to broadcast a fictional cinematic work -- falls squarely within the ambit of s. 2(b) as defined by previous cases. The ban interfered with the right of the actors, directors and producers of the film to express themselves. There can be no doubt that the ban limited the right of freedom of expression guaranteed by s. 2(b) of the Charter.

The more difficult question is whether the ban can be justified under s. 1 of the Charter as a reasonable limit on freedom of expression, judged by the standards of a free and democratic society. Accepting the ban is a "limit" on s. 2(b) rights "prescribed by law", one must weigh the gravity of the infringement of s. 2(b) against the objective to which the ban was directed.

Applying the criteria developed by this Court in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, one looks first to the objective of the ban. It is clear. It was to preserve the respondents' rights to a fair trial -- in particular to avoid the risk that an impartial jury could not be sworn, or if sworn, could not render a true verdict because of the poisonous effects of the publication.

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The next step is whether the infringement is proportionate to, or justified by, this goal. Proportionality in this sort of case is not a question of deciding where the balance should be struck between a fair trial and freedom of expression. The right to a fair trial is fundamental and cannot be sacrificed. I agree with the Chief Justice that in general, the conflict model is largely inappropriate. Fair trials and open discussion tend to go hand in hand. Nevertheless, in some instances, such as that in the current case, unlimited free expression may interfere with the accused's right to a fair trial. As Dickson C.J. said for the Court in Fraser v. Public Service Staff Relations Board, 1985 CanLII 14 (SCC), [1985] 2 S.C.R. 455, at pp. 467-68:

On the other side, however, it is equally obvious that free speech or expression is not an absolute, unqualified value. Other values must be weighed with it. Sometimes these other values supplement, and build on, the value of speech. But in other situations there is a collision. When that happens the value of speech may be cut back if the competing value is a powerful one. . . . We also have laws imposing restrictions on the press in the interests of, for example, ensuring a fair trial or protecting the privacy of minors or victims of sexual assaults.

There thus may be cases where special circumstances are presented which indicate a serious risk (as opposed to a speculative possibility) that a fair jury could not be sworn or, where jurors have already been sworn, that publicity might somehow find its way to them and prejudice them. In these cases, a ban may be justified, provided that it goes no further than required to avoid the demonstrated risk of an unfair trial.

The common law test for whether a ban should be ordered is that there is a real and substantial risk that a fair trial would be impossible if publication were not restrained. Properly applied, that test meets the requirements of justification of an infringing measure under s. 1 -- that the infringement be rationally connected to the goal, that it be minimally intrusive, and that it be proportionate to

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the benefit achieved. What is required is that the risk of an unfair trial be evaluated after taking full account of the general importance of the free dissemination of ideas and after considering measures which might offset or avoid the feared prejudice. What must be guarded against is the facile assumption that if there is any risk of prejudice to a fair trial, however speculative, the ban should be ordered. The courts are the guardians not only of the right to a fair trial but of freedom of expression. Both must be given the most serious consideration.

Rational connection between a broadcast ban and the requirements of a fair and impartial trial require demonstration of the following. First, it would seem necessary to show that many people eligible to sit as jurors would see the broadcast; conversely, if a substantial number would not see it, there should be no problem selecting a jury from among them. Second, it must be shown that publication might confuse or predispose potential jurors. In the case of a fictional work, it should be shown that jurors will not be able to separate broadcast fiction from reality. Third, it must be shown that any confusion may not be dispelled by proper direction or by other measures, such as judicial directions, change of the venue of the trial, or more exacting jury selection processes. If after considering all such matters, the judge is still left with a real concern that there is a substantial risk the trial may be rendered unfair, a rational connection between the infringement of freedom of expression and the ban will have been established.

Once the rational connection has been established, the judge must go on to ensure that the ban is minimally intrusive, i.e., that it impinges on freedom of expression no further than is actually required to avoid the risk of an unfair trial. It must be confined to the minimum geographical area required. It must not extend to more forms of

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expression or media of dissemination than necessary. And it must cease at the earliest possible time consistent with removing the risk of an unfair trial.

Toronto Star v. AG Ontario, 2018 ONSC 2586 (CanLII)

[57] The very structure of the process that FIPPA puts in place for obtaining records from its designated institutions impinges on the openness principle and s. 2(b) of the Charter, as elaborated by the courts. As reviewed earlier in these reasons, s. 2(1) of FIPPA defines “personal information” in the broadest possible terms, while s. 21(1) (which is reiterated in s. 42(1)) sets out a presumption of non-disclosure of personal information and imposes an onus on the requesting party to justify the disclosure of the record. The IPC in its rulings on disclosure has emphasized that, “In the case of information that qualifies as “personal information” under [FIPPA], there is a strong assumption against disclosure”.[61]

[58] As also explained above, these provisions apply not only to records held by the listed institutions as a matter of the business or administration of the institutions but to Adjudicative Records as well – including evidence filed before tribunals, complaints and other pleadings that form the originating processes before tribunals, dockets and schedules for hearings, transcripts of proceedings, etc. The upshot of these statutory provisions is that the openness principle does not apply as of right to the tribunals governed by the FIPPA process; rather, a person or the press that seeks access to Adjudicative Records bears the onus of establishing that an exception to the non-disclosure of personal information rule applies. Again, this is not an insubstantial onus.

...

[61] The CLA case, in other words, did not deal with Adjudicative Records such as those in issue here; and since the documents were investigative and were not part of a record before an adjudicative tribunal, the open court principle did not apply. The same is true of the other cases referred to by counsel for the Attorney General in this regard. One of those cases entails a request by a university employee for a psychological report contained in his personnel records held by the university;[69] another entails a request by a reporter for an Auditor General forensic report “directed at the detection of fraud, waste and wrongdoing involving city resources;”[70] while a third entails a request for hospital records pertaining to the provision of abortion services.[71] None of them entails a request for Adjudicative Records.

[62] As already indicated, FIPPA does not distinguish between Adjudicative Records and non-adjudicative records. But the open court principle in s. 2(b) of the Charter only applies to Adjudicative Records. This very point lies at the core of the Supreme Court’s reasoning in CLA: “Access to documents in government hands is constitutionally protected only where it is…compatible with the function of the institution concerned.”[72] Government agencies and public administrative bodies that hold investigative reports, personnel records, business and accounting records, and the like other than in an Adjudicative Record, are not subject to the open court principle.[73] They are obliged under CLA to implement transparency only where disclosure of their records is necessary for democratic process.

[63] Adjudicative Records, on the other hand, like court records, are not only entirely compatible with transparency but require it for the sake of the integrity of the administration of justice.[74] The rationale for maintaining confidentiality over records accumulated by law enforcement and forensic examiners at the investigation stage of a complaint or dispute does not, absent some special circumstance, continue into the open hearing or post-hearing stage of proceedings.[75] Thus, while access to government business records, including the content of personnel and investigative audits, is granted or withheld subject to the CLA test of “meaningful public discussion”, the question of access to documents filed in the Adjudicative Record before administrative tribunals must be answered in accordance with the Charter,[76] including s. 2(b) and the open court principle.

[64] Like most reverse onus provisions, one purpose and effect of s. 21(1) of FIPPA and the operation of the exceptions thereto is, simply put, to facilitate the government’s case against the party arguing against it.[77] This obviously makes it more difficult for the press and other document requesters to exercise the rights which they otherwise have under the Charter.

[65] This statutory imposition of an onus on the requester to justify the disclosure of Adjudicative Records may or may not be justifiable, but it certainly amounts in the first instance to an infringement on the s. 2(b) Charter right of access to those documents. The Supreme Court has stated emphatically that when it comes to access of the press to Adjudicative Records, “covertness is the exception and openness the rule.”[78] In fashioning a regime that prohibits the disclosure of “personal information” unless the press can establish its justification, FIPPA has it the wrong way around.

...

[72] When it comes to fundamental Charter guarantees such as the openness principle, freedom of the press, and freedom of expression, “any encroachment upon the guarantees demand[s] justification by the state on a stringent basis.”[89] Having found that FIPPA violates s. 2(b) of the Charter in two respects – substantively by imposing a reverse onus on a request for Adjudicative Records, and procedurally by occasioning delay in accessing Adjudicative Records – it is necessary to turn to s. 1 of the Charter. It is here that the analysis of Charter rights takes on “a more contextual approach and indicate[s] the harms that might be caused to other rights and interests”.[90] These include, most notably, the privacy rights of litigants and the administration of justice in administrative tribunals.

[73] In considering whether FIPPA’s limits on freedom of expression are reasonable and justifiable in a free and democratic society, the analysis follows the Oakes test.[91] It will therefore consider whether the legislative objective is pressing and substantial, whether the means chosen by the legislature is rationally connected to the objective, whether the legislation minimally impairs the right of free expression, and whether it is proportional considering the deleterious and salutary effects on the right.

...

[95] An across-the-board presumption such as that embodied in s. 21 of FIPPA, in which privacy and non-disclosure rather than openness and disclosure is the presumptive rule, cannot qualify as a minimum impairment of s. 2(b) of the Charter. The open court principle is the fundamental one and the personal information and privacy concerns are secondary to it.[119] That principle directs administrative tribunals to protect confidentiality only where a party seeking it establishes that it is necessary to protect important interests.[120] Although the decision-maker may be exercising a statutory discretion taking into account the context on a case by case basis, the onus must remain on the party seeking to keep the information from the public rather than the other way around.

...

[106] In any case, the various timelines built into the FIPPA system appear designed to make the system operate fairly. One cannot act judicially in making an access determination without giving notice to affected parties and providing some amount of time for a response. The specific notice and other time periods provided for in FIPPA may or may not be ideal, but there is little evidence that the problems are with FIPPA’s terms on their face. Where the evidence in the record shows that there have been inordinate delays, the source of the problems may lie more with the particular administrators or decision makers who extend the FIPPA timelines than with the statutory system itself. Once the reverse onus on personal information is removed, those human delay factors will hopefully be reduced.

[107] The Charter requires public access to Adjudicative Records, which may be tempered on a case-by-case basis by other considerations – integrity of the administration of justice, safety and security of informants and other third parties, privacy for complainants and other litigants, etc. For an unconstitutional law, “the usual remedy lies under s. 52(1), which provides that the law is of no force or effect to the extent that it is inconsistent with the Charter…. Section 24(1), by contrast, is generally used as a remedy, not for unconstitutional laws, but for unconstitutional government acts”.[128]

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[143] 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 remaining 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.

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