On Monday, the Toronto Star launched a legal challenge aimed at ending blanket secrecy in the provincial tribunal system that shrouds public records — about alleged human rights abuses, police misconduct, environmental offences and landlord-tenant disputes — from the view of Ontarians.
We often can’t tell you the stories that unfold in tribunal hearing rooms because journalists, researchers, lawyers, academics and the public are frequently denied access to tribunal records.
The enshrined legal principle of openness in our courts — the hallmark of judicial proceedings — is a fiction when it comes to tribunals.
While tribunals appear, on the surface, no different than traditional courts — with adjudicators, hearing rooms, dockets and generally open hearings — they depart dramatically from open court rules when it comes to providing records.
A journalist could sit in a tribunal hearing room today and listen to testimony, take notes, hear the names of individuals or companies involved, interview those in attendance and document the contents of records referenced. But if they were to arrive tomorrow and ask tribunal staff for copies of those records to confirm facts, understand context or obtain further details, they might well be sent packing or told to file a formal request that could take weeks — or much longer — to process.
Here’s what that means: the public’s right to know about public disputes in a public hearing involving matters of public interest can be hidden entirely or delayed to the point that the principle of transparency becomes meaningless.
Here’s what the Star believes: Tribunals have been appointed custodians of important public records at the taxpayers’ pleasure. We, all of us, own those records. We bought and paid for them in the collective interest of Ontarians.
When the public asks to see them, the default answer has to be “yes.”
As it stands, that answer delivered by tribunal staff is “no.”
Journalists at this newspaper have been routinely denied timely, meaningful access to tribunal records needed to understand — and accurately tell — important stories that illuminate how governments act, how public money is spent and how important social issues such as pay equity, workplace safety, energy pricing, land development and compensation for victims of violent crimes are handled.
Star journalists surveyed nine key Ontario tribunals seeking basic hearing records in preparation for this legal challenge. The results show a patchwork of disparate rules that reveal a system without common standards or legal foundation.
In a minority of cases, tribunal staff quickly handed over records without question. These include the Environmental Review Tribunal, which provided documents within a matter of days, and the Ontario Energy Board, which makes all material available on its website.
In other cases, records were denied outright without explanation or any reference to policies justifying the denials.
The registrar of the Ontario Mining and Lands Commissioner eventually hung up on Star researcher Maham Shakeel when she asked for a list of ongoing matters, according to an affidavit filed by Star reporter Robert Cribb as part of the legal challenge.
“Although he agreed this was public information, Mr. (Daniel) Pascoe refused to provide a list. Mr. Pascoe asked Ms. Shakeel why she needed it and who she was,” says the affidavit.
After she identified herself, Shakeel says in the affidavit that “Mr. Pascoe repeatedly insisted that in all his ‘20-something’ years of experience, he had never been asked for something like this. Eventually he hung up the phone on her.”
Reporter Jackie Hong met resistance in trying to access records and attend a hearing at the Workplace Safety and Insurance Appeals Tribunal, where workers can go to appeal compensation claims.
According to her affidavit, Hong was told people have to submit a request to attend a week in advance of a hearing, and that generally people are not allowed to attend unless the worker making the appeal consents.
In addition, the tribunal’s acting general counsel told her that “for confidentiality reasons, no one is allowed access to case documents,” and no legislation was cited, Hong says in her affidavit.
At the Ontario Civilian Police Commission, which hears police discipline appeals and complaints about police services boards, Hong learned there is no process for accessing records.
In trying to get documents relating to the case of a Windsor police officer appealing her dismissal, Hong says she was told by the police commission’s counsel that “there was no process in place because no one had really asked for this before, but that something could be arranged.”
After making a written request by email, Hong was given access to exhibits, transcripts and other documents from the case within a matter of days.
At other tribunals, staff directed reporters to file formal freedom of information (FOI) requests to obtain basic hearing documents, even though there is no guarantee that the records will be disclosed.
After having been told to file a freedom of information request to access an application at the Human Rights Tribunal of Ontario regarding a man who had made a complaint against a provincial court judge, legal affairs reporter Jacques Gallant was informed that the disclosure “may affect the interests of third parties.”
As a result, Gallant was told by counsel for the tribunal that the so-called third parties would be given a chance to make submissions about whether a copy of the application should be disclosed.
Nearly two months later, Gallant learned that the Human Rights Tribunal was withholding most of the records because they met the definition of “personal information” and an unidentified third party had not consented to their release.
Filing freedom of information requests is a time-consuming and expensive process that is not required at courthouses across Ontario, where hearing records are presumed to be public upon request.
A survey of 10 Star journalists shows that the newspaper spent more than $10,000 on freedom of information requests and appeals dealing with requests to the Information and Privacy Commissioner in 2016.
“The long delays in getting access to public institution records through the FOI process means that, even where records are ultimately disclosed, they have often become irrelevant,” Star reporter Robert Cribb, whose work places a particular emphasis on freedom of information, says in his affidavit.
“In this context, information delayed is truly information denied.”
The Star’s challenge is seeking, among other things, a court order ruling that the use of freedom of information legislation by tribunals is “unconstitutional as an unjustifiable infringement on … the Canadian Charter of Rights and Freedoms.”
“(Freedom of information law) was designed to allow access to information from government agencies, not adjudicative documents from tribunals exercising judicial functions,” the notice of application reads. “(Tribunal) records, including pleadings, exhibits, legal briefs and all other documents on which adjudication is based … are public in the same way as court records are public.”
Provincial tribunals, which date back decades, were intended to handle disputes with greater speed, efficiency and expertise than an increasingly crowded courts system. The Star’s filing lists 16 major quasi-judicial tribunals that handle matters of vital public importance on a daily basis.
In 1997, Progressive Conservative MPP Bruce Smith hailed the tribunals that he said were “streamlining the administrative process.”
“We’re moving disputes between landlords and tenants out of the courts and into a tribunal system … which in our opinion will be an effective means to deliberate over disputes in a more timely and effective manner than proceeding through the court system,” he told the legislature.
Al Leach, then minister of municipal affairs and housing, said a new “quasi-judicial agency” would be “at the heart of the government’s simpler, faster and fairer approach to resolving landlord-tenant issues. This less formal approach will lift the burden currently placed on Ontario’s crowded courts and offer Ontario’s tenants and landlords a one-window opportunity to resolve problems.”
Tribunals may well have accomplished greater judicial efficiency. But something important has also been lost: transparency. Secrecy has gradually woven itself into their daily operations.
“There has been a huge transfer of justice from courts to tribunals in Ontario over the past several decades. Openness and transparency of justice is a fundamental constitutional principle that makes our justice system work and be respected,” said one of the Star’s lawyers, Paul Schabas.
“Ironically, the application of the Freedom of Information Act to tribunals severely hinders public scrutiny, putting roadblocks in the way of getting information and, when information is disclosed, important information is deleted. This is inconsistent with the public’s right to know about and scrutinize our justice system and is, we think, unconstitutional.”
We believe tribunal rules need to be clear and consistent: they must all operate with the same openness and transparency that Canadians have come to expect from institutions that judge the innocence or guilt of citizens.
We believe too many fail that crucial test.
We are seeking change.
We welcome your stories and ideas.
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