Case Summary and Analysis: Human Rights Tribunal of Ontario contemplates Toronto Star and Tribunals Adjudicative Records Act in Grange v Toronto (City)

In December 2019, the Human Rights Tribunal of Ontario (the “Tribunal”) released a decision contemplating the recently enacted Tribunals Adjudicative Records Act, 2019, SC 2019 c7 Sched 60 (TARA). The decision, Grange v Toronto (City), namely contemplates the documents that fall within the definition of “adjudicative records” for the purposes of TARA (and are therefore presumptively available to the public), and further, contemplates TARA and the common law tests to be applied on requests for confidentiality orders.

Perhaps the most interesting aspect of this decision, however, is the fact that the matter was resolved by way of a settlement. Despite this, a request was made by a non-party, the Toronto Star, to access the adjudicative records.

Background and Context

TARA is a legislative response to the Ontario Superior Court’s decision in Toronto Star v AG (Toronto Star), and requires administrative boards and tribunals in Ontario to adhere to the open court principle by no longer operating on a presumption of privacy. This means that all case records that fall within the definition of “adjudicative record” are presumptively available to the public, which is a marked shift from the relatively more private manner in which boards and tribunals previously operated. To read more about the history of TARA and Toronto Star, click here to read ARCH’s previous blog post.

Grange v Toronto (City)

In Grange, the Applicant filed an application against the City of Toronto and several individuals alleging discrimination with respect to employment on the basis of race, colour, ancestry, place of origin, ethnic origin and sex. Her application included details and identified those involved in specific workplace incidents.

The City filed a Request for an Order During Proceedings (“RFOP”) to have the application dismissed for no reasonable prospect of success and delay. The Tribunal considered the parties’ arguments and supporting documentation, but ultimately dismissed the RFOP. It issued an Interim Decision setting out its reasons. Subsequently, the parties settled and the matter never proceeded to a hearing.

Meanwhile, Jennifer Pagliaro, a reporter with the Toronto Star, requested access to the Grange records at the Tribunal. The Tribunal advised that it would provide records consistent with the regime set out in the Toronto Star decision. The City objected to the disclosure of the parts of the records that identified its employees not named in the application and filed a request for a confidentiality order over this information. Toronto Star sought and was granted intervener status to make submissions on this issue. Shortly thereafter, the TARA came into force. The parties were given opportunity to make submissions on the regime as set out in Toronto Star and in TARA. In particular, the parties were invited to make submissions on the following questions:

a) Are the documents “adjudicative records” that must be made available to the public under the open courts principle or the TARA?
b) If so, should the Tribunal grant a confidentiality order restricting access to the records?

Are the documents adjudicative records?

The parties agreed that the pleadings were adjudicative records and subject to disclosure. At issue however, was the status of the documentation filed by the parties in support of their arguments on the RFOP to have the application dismissed. The parties further agreed that since section 2(1) of TARA only applies to proceedings commenced on or after the date the section came into force, it could not apply in this matter. Therefore, the issue of whether the supporting documents fall within the definition of “adjudicative records” turned on the open courts principle and the Toronto Star decision.

The Tribunal reviewed the salient points of the Toronto Star decision, namely that there should not be a presumptive right to personal privacy in adjudicative records, and that Toronto Star “explicitly recognized that the open courts principle applies to administrative tribunals” (para 14). On this basis, the Tribunal held that the supporting documents were subject to disclosure because they were before the adjudicator for the purposes of considering the City’s RFOP:

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…” 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 the 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. (para 21) [citations removed]

Accordingly, the Tribunal held that the supporting documents were adjudicative records and thus must be disclosed.

Should the Tribunal grant a confidentiality order over the documents?

Once the Tribunal decided that the documents were required to be disclosed, it was necessary to determine if any parts of the documents should be restricted from access. In this respect, both the open courts principle and the test set out in TARA apply.

Section 2(2) of TARA allows tribunals to issue confidentiality orders to restrict access to adjudicative records, 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.

At the same time, the common law open courts principle is applied on the basis of the Dagenais/Mentuck test. With the Dagenais/Mentuck test, the Tribunal can only order a publication ban once the applicant has demonstrated that (a) an order restricting access is necessary to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk, and (b) that the benefits of restricting access outweigh the negative effects on the rights and interests of the parties and the public, including the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.

In applying both tests and making its determination, the Tribunal noted that the introduction of the test as set out in TARA raises “some interesting questions around the application and interplay” of the two tests, largely because “the Dagenais/Mentuck test appears to set a somewhat different and possibly higher threshold for issuing confidentiality orders than the statutory test under TARA.” (paras 44-45) However, the Tribunal opted to apply both and left the interplay issue for future debate.

With respect to the TARA test, the Tribunal found that while the allegations and information in the records may be uncomfortable and embarrassing for the individuals named, it was not persuaded that there was a broader public interest served by restricting information of this nature. According to the Tribunal, the City’s argument that there should be a particular recognition of the privacy right in non-parties or for civil servants in the commission of their duties, strayed “dangerously close to the reverse onus presumption that the court rejected in the Toronto Star decision.” (para 39) Accordingly, the City failed to meet the test for confidentiality orders under TARA.

Turning to the application of the Dagenais/Mentuck test, the Tribunal found that the City had not provided evidence that disclosure would cause a serious risk to the administration of justice. On the second part of the test, while the Tribunal agreed that the personal interests of the City’s employees might be served by restricting access to information in the documents, this was not enough to warrant tipping the balance away from the “bedrock constitutional principle of openness.” (para 48). The Tribunal cited Toronto Star for the proposition that openness of the system takes primacy over privacy concerns of innocent parties.

To conclude, in demonstrating that the Tribunal was alive to the potential impact of this decision and the discomfort in moving to an open court model, the Tribunal stressed the importance of context in making decisions about confidentiality orders:

Decisions to provide adjudicative records without restrictions will no doubt have implications for many of the individuals whose information is released, including discomfort, embarrassment or worse. These are very real concerns for those affected. Adjudicators who consider requests for confidentiality orders may also feel some discomfort with the shift to openness. However, the courts and the TARA have recognized the importance of the openness principle. The fact that information is personal or sensitive is not enough on its own. On the facts of this case, there is no basis for restricting public access to the adjudicative records under the TARA or common law. (para 50)

What this means for parties at administrative boards and tribunals in Ontario

As one of the first handful of cases to contemplate the operation of TARA and how it applies to complaints filed at the HRTO, Grange provides some early insight into some of the issues that boards and tribunals across Ontario may grapple with in light of the requirements set out in the new legislation. It is clear that there is some discomfort in the transition to the open courts principle. Grange foreshadows to future litigation to address the arguably different thresholds for orders of confidentiality (i.e. with Dagenais/Mentuck requiring a serious risk to the proper administration of justice and TARA requiring that disclosure of intimate personal information outweighs the public interest of openness).

Grange provides a good reminder to parties exercising their rights before these forums that members of the public can and may seek disclosure of records, even after cases have been settled. The takeaway: be mindful and proactive when filing anything at boards and tribunals to ensure that documents are not broader than the issues raised in the case. This is a proactive way to limit potential disclosure of personal information to only what is relevant to the matter at hand.