Privacy Rules Around Non-Disclosure of Administrative Records Declared Unconstitutional
Date: May 25, 2018
An Ontario court recently held that the Freedom of Information and Protection of Privacy Act (FIPPA) violates section 2(b) of the Canadian Charter of Rights and Freedoms (Charter), finding that it goes too far to protect the privacy of parties, witnesses and others in matters heard by statutory tribunals, including the Human Rights Tribunal of Ontario and the Ontario Labour Relations Board. Learn more in this FTR Now.
In Toronto Star v. AG Ontario, the Toronto Star (The Star) challenged FIPPA’s application to the administrative records held by 13 administrative tribunals. The Star contended that FIPPA’s application to these tribunals in respect of adjudicative records (e.g. applications, complaints, orders, documentary evidence, transcripts, decisions) violated the Charter on both procedural and substantive grounds.
The Star put forth the position that FIPPA’s personal privacy exemption in section 21(1) – which reads “A head shall refuse to disclose personal information to any person other than the individual to who the information relates” – violates the “open courts” principle. The open courts principle recognizes the importance to the public that judicial proceedings should be universally known, and is embedded within section 2(b) of the Charter. The exemption in section 21 must be read in conjunction with section 10 of FIPPA, which reads “Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless, (a) the record or the part of the record falls within on of the exemptions under sections 12 to 22.”
The Ontario Superior Court of Justice found that the reported decisions of the Information and Privacy Commission (IPC) regarding production of records suggested that the section 21 exemption had become the norm rather than the exception. The Court noted:
 The evidence collected by the Toronto Star and, indeed, the reported decisions by the IPC regarding production of records, suggests that the personal information exemption is so widely invoked that it has become the rule rather than an exemption to the rule. In effect, decisions about production of records under FIPPA start from the s. 21(1) premise of non-production rather than from the s. 10(1) premise of production.
 Adjudicative Records, in particular, are likely to fall within the definition of “personal information”, since they almost inevitably contain personal information identifying the parties, were most often compiled in respect of an investigation into a regulatory breach or other violation of the law, and frequently relate to either welfare benefits, employment, education finances, race or sexuality, etc. Moreover, complaints to regulators, pleadings, and other primary documents filed with tribunals invariably contain opinions by one person about the issue at hand or the opinion of one person about another, making them “personal information” under ss. 2(1)(e) and (g). Differences of opinion are what adjudicated disputes are virtually always about, but their effect is to bring the Adjudicative Records into the s. 21 exemption.
The Court found that the presumption of non-disclosure and the reverse onus this created on individuals seeking information presented a serious obstacle to the disclosure of adjudicative records, and violated the open courts principle. The Court concluded that FIPPA had in effect created a system which prohibited the disclosure of adjudicative records containing personal information, unless the requester could establish its justification. This was in contrast to the intended purpose, which was to create a system whereby the onus would be placed on the holder of the records to justify why the record should not be disclosed.
Substantively, the Court found that FIPPA violated s. 2(b) of the Charter and could not be saved under the Oakes analysis stating:
 An across-the-board presumption such as that embodied in s. 21 of FIPPA, in which privacy and non-disclosure rather than openness and disclosure is the presumptive rule, cannot qualify as a minimum impairment of s. 2(b) of the Charter. The open court principle is the fundamental one and the personal information and privacy concerns are secondary to it. That principle directs administrative tribunals to protect confidentiality only where a party seeking it establishes that it is necessary to protect important interests. Although the decision-maker may be exercising a statutory discretion taking into account the context on a case by case basis, the onus must remain on the party seeking to keep the information from the public rather than the other way around.
With respect to the proportionality inquiry under the Oakes analysis, the Court noted that there was “no real evidence” to support that individuals seeking justice under the various administrative tribunals identified would cease using the tribunals if their identities were at risk of being exposed to the public. The Court recognized that tribunal litigants are concerned about protecting their privacy, but found that there was little to no evidence that a change to section 21 would have an effect on parties’ willingness to bring forth tribunal applications.
The Court went on to address The Star’s assertion that the procedural regime under FIPPA created delays which also violated section 2(b) of the Charter. The Attorney General contended that there was no evidence that any delay occasioned by the FIPPA procedure violated section 2(b) because there was no evidence that this impeded The Star’s ability to write about any adjudicative records subject to a Freedom of Information request. The Court agreed with The Star’s position that section 2(b) rights had been burdened. The Court held that the delays resulted in the newsworthiness of the story in which the adjudicative record related fading by the time the records had been produced and stated:
 The delay and bureaucracy inherent in the FIPPA regime also burdens the exercise of s. 2(b) Charter rights. As noted, freedom of the press is only operational when the press has timely enough access to information to publish to an audience. Untimely disclosure that loses the audience is akin to no disclosure at all.
Procedurally, the Court found that FIPPA violated s. 2(b) of the Charter, however it could be saved under the Oakes analysis. The Court noted found that “bureaucracy in and of itself is not a Charter violation.” The Court acknowledged that freedom of the press is only operational when the press has timely enough access to information to publish to an audience, and that untimely disclosure that loses the audience is “akin to no disclosure at all.” However, while outlier cases of delay could lead to individual remedies, viewed on a systemic basis, the impairment was minimal.
With respect to remedy, the Court ruled that one year was an appropriate length of time for the relevant portions of FIPPA to be “re-worked” should the legislature choose to do so, or alternatively, provide time for institution heads and the IPC to establish “a principled, tribunal-specific and context-specific basis for responding to requests under FIPPA for access to Adjudicative Records.”
Takeaways for Employers and Service Providers
The Ontario government has stated that it will not be appealing the decision. It remains to be seen what FIPPA amendments or privacy-related legislative reforms may be introduced by the next Ontario government in response to the Court’s decision.
The decision will likely lead to more openness in the province’s tribunal system and may require employers and service providers to consider carefully the types of documents and information that they are willing to provide to administrative tribunals on a strategic basis, recognizing that rules generally requiring disclosure of all relevant documents continue to govern administrative proceedings.
Should you have questions about how this decision could impact your organization, please contact your regular Hicks Morley lawyer.
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