Case Summary and Analysis: Provincial Government Introduces Legislation about Access to Records at Administrative Boards and Tribunals
A Summary and Analysis of Tribunal Adjudicative Records Act, 2019
On May 29, 2019, Bill 100, An Act to Implement Budget Measures and to Enact, Amend and Repeal Various Statutes received Royal Assent and became law. Of particular interest to lawyers and paralegals practicing before administrative boards and tribunals was Schedule 60, which created the Tribunal Adjudicative Records Act, 2019. It provided the much-anticipated legislative response to Toronto Star v AG (Toronto Star), which purports to align administrative tribunals more closely with the open-court principle in operation in Ontario Courts.
In early 2017, the Toronto Star brought a Charter challenge targeting the application of the Freedom of Information and Protection of Privacy Act (FIPPA) to administrative tribunal records on the basis that this protection violated the open court principle embedded in section 2(b) of the Canadian Charter of Rights and Freedoms (Charter).
In the decision released April 2018, Morgan J. agreed. He found the application of FIPPA to boards and tribunals violated section 2(b) and issued a declaration of invalidity of the impugned provisions of FIPPA. In particular, he found that FIPPA imported a presumption of privacy which imposed an onus on the requesting party to demonstrate why they should have access to a document that was part of a quasi-judicial proceeding. This “reverse onus,” according to Morgan J., could not stand as it was in violation of the open court principle. The declaration was suspended for one year and was anticipated to come into effect April 27, 2019.
Between April 2018 and early April 2019, it was uncertain whether the government would amend FIPPA, introduce new legislation or simply let the impugned provisions expire. For those appearing before administrative tribunals and boards, this was a period of flux; it was unknown what rules, if any, would replace the FIPPA-sized void left in the wake of Toronto Star and whether ongoing applications, filed pre-Toronto Star, would be subject to these new rules.
With little fanfare, the government’s response to the Toronto Star decision arrived in early April 2019 by way of Schedule 60 to Bill 100, buried within the provincial government’s budget. It provides some direction with respect to the issues raised in Toronto Star, but may raise more questions than answers.
The Act introduces several significant procedures and substantive concepts that will no doubt alter the way in which administrative tribunals process requests for administrative records. This post will look at those concepts and consider how this may affect practice before administrative tribunals.
(i) Adjudicative Records
One of the more pressing issues that had to be addressed by Morgan J. in his decision was to answer the question “what is an adjudicative document?” The significance of this question lies at the heart of the Toronto Star’s challenge; if a document was a part of a quasi-judicial proceeding, then, according to Toronto Star, FIPPA cannot apply as it violates the open court principle.
The definition of “adjudicative documents” in the Act is quite similar to the definition set out in section 20 of the Statutory Powers Procedure Act (SPPA), and adopted by Morgan J. as a “ready definition” in Toronto Star. It also includes the additions that Morgan J. made to the definition, including adding tribunal dockets and/or schedules of hearings and registers of actions or proceedings that are kept by administrative tribunals (para. 9).
There is, however, at least one discrepancy between Morgan J.’s definition and the Act’s definition of “adjudicative document” that is of significant concern, especially for self-representatives appearing before an administrative tribunal. In his decision, Morgan J. noted that the definition of an “adjudicative record” only included documents that had been entered as an exhibit at a hearing (para. 10). This means that, at the Human Rights Tribunal of Ontario (HRTO) for example, documents exchanged between the parties during pre-hearing disclosure would not fall within the definition of “adjudicative record” and are, as such, not captured by the definition put forward by Morgan J.
In subsection 2(4) of the Act, the definition of “adjudicative document” expands the scope of what may be captured, and may then become a publicly available document, to include “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.” This means it may include documents that are considered by a tribunal but may not necessarily have been entered in as an exhibit in a hearing.
Similarly, the definition includes a problematic catch-all. In particular, subsection (2)9 of the Act, broadens the definition of an adjudicative record to include, “Any other record that relates to a proceeding before a tribunal and that is prescribed by the regulations made under this Act.” This provision leaves much to interpretation and, again, widens the scope for the type of record that may fall within the definition of an “adjudicative record.”
The significance of this lies in the reality that many parties self-represent before administrative tribunals. Self-representatives often file documents with a tribunal that are either irrelevant or are not required to be disclosed to the opposing party. Self-representatives often adopt a wide scope of what is considered relevant to support their matter because they have not received legal advice on how the tribunal may define or interpret “relevant.” Pre-Toronto Star, disclosure of these documents was subject to the protections of FIPPA. The definition contemplated in the Act, however, elevates the concern of privacy that has plagued this matter and this decision from the outset.
These provisions might be of particular concern for persons with disabilities who seek disability-related accommodations at a tribunal in order to ensure their full participation in the proceedings. The tribunal may request medical documentation in support of these kinds of accommodation request. These medical documents may not be relevant to the merits of the complaint, and may not form part of the record. Yet, according to subsection (2)9, medical documents of this nature may fall within the definition of “adjudicative record.” This is a much broader scope than is contemplated by both the SPPA and by Morgan J. in Toronto Star.
In drafting their policies that reflect the new practice(s) flowing from Toronto Star, boards and tribunals will have to address the issue of what documents are considered “adjudicative documents” for the purposes of their proceedings so that parties appearing before these tribunals understand their processes and act accordingly.
(ii) Confidentiality Orders
Subsection 2(2) of the Act introduces the availability of “confidentiality orders” to parties to a tribunal proceeding (see subsection 2(3)1) or third parties who may be affected by the disclosure of the information contained in an adjudicative record (see subsection 2(3)2).
The test to be applied on an application for a confidentiality order is set out in subsection 2(2) and states that a tribunal may order that an adjudicative record or a part of an adjudicative record may be treated as confidential and not 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.
This wording loosely reflects the wording of the Dagenais/Mentuck test for publication bans, which is the existing test already applied by a number of administrative tribunals. (See at the HRTO for example, Cybulski v. Canadian Corps of Commissionaires, Ottawa Division, 2013 HRTO 1773, A.B. v. Toronto (City), 2018 HRTO 1282). The Dagenais/Mentuck test states that a publication ban may be issued 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 trial, and the efficacy of the administration of justice.
In Toronto Star, Morgan J. found that the Dagenais/Mentuck test was an appropriate test that can be applied in circumstances when a request for non-disclosure of documents was made by an applicant. In that case, the AG and several of the intervenors argued, however, that the Dagenais/Mentuck test was inappropriate as it is too stringent a test for applicants and may lead to a barrier to accessing justice. Morgan J. did not agree with this proposition and found that the test was flexible enough to be adapted by administrative boards and tribunals into their procedures.
With the introduction of confidentiality orders, a question arises as to whether confidentiality orders are expected to replace publication bans or whether confidentiality orders will be made available to applicants in addition to this mechanism.
With the passage of the Act, it is up to each tribunal to provide further clarity on the interpretation and parameters of the confidentiality order test and to establish the threshold that the party seeking a confidentiality order will have to meet.
A question that arose among legal practitioners appearing before tribunals in light of Morgan J.’s decision in Toronto Star was whether the decision would retroactively apply to all documents and records that had been filed with administrative tribunals. For example, if an applicant had a matter before the HRTO that commenced, was heard and was decided prior to 2019, would those adjudicative records no longer be protected by FIPPA?
The Act makes it clear that it will only apply to administrative tribunal proceedings that commence on or after the day the legislation comes into effect (subsection 2(1)).
As such, it is clear that any documents, including adjudicative records that form a part of a proceeding that commenced prior to the Act coming into force are not wholly subject to this particular piece of legislation. Yet, the Act may provide some protection of these records by way of subsection 2(4), where it states, “A confidentiality order may apply to adjudicative records regardless of when the proceeding to which they relate commenced.”
As with much of this legislation, it will remain up to each board and tribunal to provide clarity and guidance as to how it anticipates treating requests from third parties for adjudicative documents for applications commenced before the passage of the Act and for those commenced after, and to communicate that in an accessible manner to applicants and prospective applicants.
Some tribunals are already in the midst of drafting policies that reflect that change in practice in response to Toronto Star. Those policies will also have to reflect the changes introduced by the Act and provide succinct and clear direction on the procedural and substantive framework for access over adjudicative records. ARCH will continue to monitor how this Act is incorporated in tribunal procedure(s).
* Correction Note: The sentence in the first paragraph of the original blog post “Of particular interest to lawyers practicing before administrative boards and tribunals was Schedule 60, which created the Tribunal Adjudicative Records Act, 2019″ was modified in June 7, 2019, to “Of particular interest to lawyers and paralegals practicing before administrative boards and tribunals was Schedule 60, which created the Tribunal Adjudicative Records Act, 2019″.