Under the “open court” principle, the public presumptively has access to court proceedings and records, and such access is viewed as vastly important. The application of the principle means that anyone seeking to deny such access to court proceedings and records must prove extraordinary circumstances. The principle is based on the assumption that public confidence in the court system and understanding of the administration of justice requires openness and publicity. Further, it is necessary to ensure freedom of expression, as the public and the media must be able to speak openly about court proceedings and the justice system. As such, it is embedded in our Constitution.
This means that any proceedings between employees and employers that take place in court, and the records associated with such proceedings, are open to the public. However, not all workplace legal matters are dealt with in court – many employment law matters are dealt with by administrative tribunals. In Ontario, the two main administrative bodies that deal with employment issues are the Human Rights Tribunal of Ontario (the “Human Rights Tribunal” or the “Tribunal”) and the Ontario Labour Relations Board (the “Labour Board”).
Until Toronto Star v. AG Ontario, 2018 ONSC 2586, it was unclear whether the open court principle applied to such tribunals. In that case, the Ontario Superior Court of Justice had to consider whether the Freedom of Information and Protection of Privacy Act (FIPPA), an act that requires the public to submit requests for most government documents, with a strong presumption against disclosure, applied to tribunal proceedings and records. The judge found that the application of FIPPA to such court-like tribunal proceedings was unconstitutional. Therefore, the sections of FIPPA relating to the presumption of non-disclosure was found not to apply to administrative tribunals.
In response, the Ontario Government passed the Tribunal Adjudicative Records Act, S.O. 2019, c. 7, Sched. 60 (the “Act”), which sets out the rules relating to the public availability of adjudicative (tribunal) records. Under the Act, tribunals must make the following records public:
- Applications or documents commencing proceedings;
- Notices of hearings;
- Written submissions;
- Evidence and documents relied upon in decisions;
- Transcripts of oral evidence;
- Decisions or orders and reasons;
- Hearing dockets or schedules; and
- Registers of proceedings.
Section 2(2) of the Act also provides for certain confidentiality orders where:
- matters involving public security may be disclosed; or
- 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.
The test used in applying section 2(2) will be determined over time through tribunal decisions.
The Human Rights Tribunal of Ontario has already come out with one decision regarding the Act. In Grange v. Toronto (City), 2019 HRTO 1550, the Tribunal applied section 2(2) in rejecting a request for a confidentiality order. Although it will take more decisions for a test to fully develop, the Tribunal did start to shape the interpretation of that provision, particularly subsection 2(2)(b). The Tribunal held that the subsection requires the Tribunal to balance the interests served by restricting access against the desirability of adhering to the openness principle. Notably, it held that the presumption is openness, meaning that the party requesting confidentiality must demonstrate why it is required, while the party seeking openness is not required to demonstrate why disclosure is required or relevant.
For employees and prospective employees, this opens up the opportunity to gain greater insight into your employer or prospective employer and their previous workplace issues. Although the Act does not apply to records of proceedings that began before June 30, 2019, there will eventually be more public information available on how companies have treated their employees in the past.
However, this also increases the likelihood of employees having to publicly disclose information that they would rather remain private if they want to address legal issues with employers or former employers. This is especially the case considering personal information is more likely to be relevant in a human rights or harassment matter, which are generally dealt with by administrative tribunals, than in pure wrongful dismissal cases, which proceed through the court system. Further, although confidentiality orders will be granted in some circumstances, it currently seems that such circumstances might be rare.
For employers, more documents and submissions will be available to the public than before, and they will relate to a greater variety of circumstances than they did previously. At this point, we only have a hint of how the test for applying for confidentiality orders will develop. Employers should assume that the test will be difficult to meet, and be ready for a world in which Human Rights Tribunal and Labour Board proceedings are public.