Ontario’s new Tribunal Adjudicative Records Act, 2019 (“TARA”) came into force on June 30, 2019. It allows members of the public, including media, to access records relating to proceedings at certain administrative boards and tribunals. They include the Human Rights Tribunal of Ontario (“HRTO”), the Ontario Labour Relations Board (“ORLB”) and the Pay Equity Hearings Tribunal. Previously, such records were only accessible through request under the Freedom of Information and Protection of Privacy Act (“FIPPA”).
TARA is the Ontario government’s response to a successful challenge to FIPPA by the Toronto Star. The Star had argued that applying FIPPA to administrative tribunal records violated the open court principles in the Canadian Charter of Rights and Freedoms (the “Charter”).
Toronto Star reporters had been denied access to records relating to cases before the HRTO and the OLRB. They had sought the records through the FIPPA process. In 2018, the Ontario Superior Court found in favour of the Star. The Court agreed that applying certain provisions of FIPPA to tribunal records interferes with open court principles. This is because FIPPA includes a strong presumption against disclosure of personal information, which is broadly defined. As a result, FIPPA makes it difficult for persons requesting such records to get access, at least without significant delays. The Court declared certain provisions of FIPPA to be in violation of the Charter, but delayed the effect of that declaration by one year until late April 2019.
What the New Law Requires
With the introduction of TARA, certain administrative tribunals must now make the following records available to the public regarding their proceedings:
- An application or other document that starts a proceeding;
- A notice of a hearing;
- A written submission;
- A document that has been admitted as evidence at a hearing or otherwise relied upon in a decision;
- A transcript of oral evidence;
- A decision or an order and any reasons for it;
- A docket or schedule of hearings; and
- A register of proceedings.
Importantly, TARA only applies to records that relate to proceedings which began after May 29, 2019.
The new law specifically lists certain records that tribunals are not required to make available to the public. These include notes and draft decisions created by or for a member of a tribunal, notes created by or for a person appointed to help resolve or mediate cases, or records relating to an attempt to settle a case through an alternative dispute resolution process.
The new law also provides for confidentiality orders. They may be made if the tribunal determines that matters involving public security might be disclosed; or intimate financial or personal matters or other matters in the tribunal record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the benefit of availability to the public. It remains to be seen how this test will be applied by the adjudicative tribunals.
The National Context
Open court principles are not unique to Ontario, but rather are a key to the Canadian judicial system as a whole. For that reason, the Toronto Star case and TARA will likely impact the openness of administrative tribunals across the country, though different considerations may apply in British Columbia, Alberta, Québec, and at the federal level where privacy legislation applies to employment relationships. With the Toronto Star case already having been cited by courts and tribunals in British Columbia and Nova Scotia, it is clear that the decision has not gone unnoticed.
What Employers Need to Know
In Ontario, tribunal records were previously more challenging for non-parties to obtain. With the introduction of TARA, it is likely that requests for such records will be more frequent. Documents and submissions filed by employers may be more broadly circulated than they were before.
Since the new law came into force, a number of cases at the HRTO and OLRB have dealt with requests under TARA. It appears that the procedure being developed by the HRTO and OLRB is to advise the parties to the proceeding of the request for access; and provide them with an opportunity to respond and make any confidentiality requests. While these processes are not yet well defined, it appears that employers may have opportunities to apply for confidentiality orders. We will continue to provide updates on any developments in this respect.
Elsewhere, it may be just a matter of time before similar challenges are brought to privacy legislation or administrative tribunals’ policies in other provinces and territories, or for some of those governments to introduce similar new transparency laws.