Public Has a Constitutional Right of Access to the Record of a Hearing

In Toronto Star v. AG Ontario, 2018 ONSC 2586,, the media outlet brought a wide ranging challenge to the practice of many, but not all, government tribunals restricting the public’s right of access to their hearing records. The tribunals that restricted access did so on the basis of the privacy rights of individuals referred to in the hearing record citing the Freedom of Information and Protection of Privacy Act (FIPPA). The Court found that FIPPA contained a presumption of privacy that was inconsistent with the open court principle inherent in the freedom of expression protections in the Canadian Charter of Rights and Freedoms. The Court gave the government one year to amend FIPPA to make it consistent with the Charter. The decision only applies to tribunals that hold hearings.

Most professional regulators in Ontario are not directly part of the government and thus are not governed by FIPPA. Most professional regulators already take the presumption of public access approach. So this decision has little direct application to them. However, in the course of its reasons, the Court emphasized that the Charter right of public access requires a speedy process for access requests to be honoured. The Court also indicated that there would be circumstances in which the hearing tribunal could restrict access (e.g., withhold or redact some information) where the privacy interests of the individual outweighs the usual principle of openness. Where the request for access to the hearing record is made during the hearing itself, it can usually be decided quickly. However, where the request is made after a hearing (or where it relates to the privacy interests of a person who is not present at a hearing), regulators must develop procedures to consult the relevant persons promptly. The Court suggested that a 30-day time period might be acceptable.

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