Ontario says tribunals should not be as open as courts

ONTARIO – Ontario’s quasi-judicial tribunals are not courts and should not be subject to the same principles of openness when it comes to their records, the province argued in a court filing Thursday.

Responding to a constitutional challenge from the Toronto Star that calls on Ontario’s various administrative tribunals — such as the Landlord and Tenant Board, and the Ontario Municipal Board, among others — to disclose hearing records as readily as courts do, the province’s lawyers said that while openness and transparency are “important features” of tribunals and the hearings themselves are typically open to the public, the right to access documents related to those hearings must be balanced against privacy concerns.

“(The Star) ignores the critical legal, institutional and practical differences between courts and tribunals that make the open courts principle an inappropriate foundation for access to tribunal files,” the province’s factum reads.

The Star launched its legal challenge against the province last year in an effort to gain faster and fuller access to documents the paper argues are a matter of public interest. While reporters can attend and report on what happens at the tribunals’ public hearings, obtaining documents related to those hearings after they occur is inconsistent, onerous and often significantly delayed, the Star has argued.

“Tribunals appear, on the surface, no different than traditional courts — with adjudicators, hearing rooms, dockets and generally open hearings — but they depart dramatically from open court rules when it comes to providing records,” the Star wrote in an editor’s note published last year.

Unlike courts, some of Ontario’s tribunals require members of the public, including the media, to file formal freedom of information requests in order to access to documents related to a case. That process, the Star argues, can take months or years and the documents are often heavily redacted. Some tribunals do not even make their dockets or schedules public, which makes it almost impossible for reporters to cover cases.

The province argues this is necessary to address “legitimate” privacy concerns for the people involved in the hearings, who often represent themselves. It describes freedom of information requests as a “relatively minor administrative burden” that doesn’t “substantially impede” reporters’ abilities to cover tribunals.

The Star, meanwhile, is arguing that the way freedom of information legislation restricts access to tribunal records amounts to an “unjustifiable infringement” on the Charter of Rights and Freedoms.

“Newsgathering requires timeliness,” the paper’s factum reads. “Delay in public access has a deleterious effect on the ability of the media to report, and as a result, on the public’s right to be informed.”

Freedom of information legislation was intended to apply to governments and its agencies, not judicial bodies, the Star argues. The function of all the tribunals were once the domain of the courts, it states. Tribunals were created to relieve the burden on an increasingly backlogged court system, but the fundamental principle of openness should still apply.

The province argues that tribunals do not require the same public scrutiny as courts because they are created by government legislation and subject to government oversight. Tribunal case files also include reams of unvetted documents that would never be released by a court. The fact that some tribunals already release records without a freedom of information request does not mean all should, as the Star suggests.

“(The tribunals) have adopted approaches that are well tailored to the types of disputes and documents that come before them.”

The province said that in all of the instances entered as evidence by the Star where reporters did file freedom of information requests, documents were released by the respective tribunal within 45 days, albeit with redactions.

The province also argues that increasing public access to tribunal documents will have a “chilling effect” on people’s willingness to bring complaints forward, citing the testimony of lawyers who said they believed some people would be less inclined to participate in tribunal process if they knew documents related to their case would be publicly available. The Star said the province provided no evidence of a single person who would not have come forward to a tribunal if access to documents was less restrictive and argued that in many reporters’ experiences, individuals want public attention and scrutiny on their case.