Tribunals Ontario Licence Appeal Tribunal
Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis
Appeal under the Consumer Reporting Act, R.S.O. 1990, c. C. 33, from a decision of the Registrar of Consumer Reporting Agencies to suspend a registration pursuant to Section 5(2) of the Act.
Between:
2642985 Ontario Inc. o/a Landlord Credit Bureau
Appellant
and
Registrar, Consumer Reporting Act
Respondent
ORDER
ADJUDICATOR: Monica Ciriello, Vice-Chair
Held in writing: February 08, 2022
OVERVIEW
1The Appellant received a Notice of Proposal (NOP) issued by the Registrar, Consumer Reporting Act, to suspend the Appellant’s registration as a consumer reporting agency. The Appellant appealed to the Tribunal.
2The Third-Party Requester (Requester) requested copies of adjudicative records in this matter. They requested the Notice of Appeal (NOA), the NOP, written submissions, documentary evidence and any of the Tribunal’s orders (collectively referred to as “the adjudicative records”).
3The Tribunal notified the parties of the request and requested submissions. The Appellant replied by letter requesting a confidentiality order. The Tribunal directed the Appellant to bring a motion if it wished to pursue such an order.
4The Appellant brought a motion seeking confidentiality orders in relation to the proceeding and its records. The Tribunal received submissions from the Requestor as well as a further reply from the Appellant.
5For the reasons that follow, the Appellant’s motion for a confidentiality order is dismissed.
PRELIMINARY ISSUE
6In its Notice of Motion and reply materials, the Appellant requested that the motion be heard by videoconference given the serious potential of reputational damage it may suffer. It also submitted that the Requester’s motives for requesting the records are not clear, and thus an oral hearing is required “to explore these credibility issues and clarify any erroneous information that may be before the Tribunal”.
7Under the Statutory Powers Procedure Act, the Tribunal has the discretion to hold written, electronic or in-person hearings. Section 5.1(2) states that a party may request that the Tribunal not hold a written hearing if there is “good reason not to”. If the Tribunal concludes that there is good reason not to hold a written hearing, it must then hold an electronic or in-person hearing. Moreover, section 3 of the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020 gives the Tribunal a broad discretion to determine and facilitate the format of hearings as it considers appropriate. In my view, the Appellant has failed to establish that there is good reason not to hold a written hearing in respect of its motion.
8While it is true that matters involving credibility or serious allegations against a person’s character may be most appropriately heard in an electronic or in-person hearing, that is not always the case. In any event, I do not consider this motion to be one that turns particularly on credibility. First, I am prepared to accept that the Appellant believes there are factual inaccuracies in the NOP as indicated in the affidavit filed with its motion. I am also prepared to accept that the Appellant believes it will suffer some reputational harm as a result of public access to the records. As discussed below, however, my decision turns on the fact that I do not believe the identified interests at stake rise to the level of warranting a restriction on the open court principle, and that finding has very little to do with credibility.
9Second, the Appellant’s submission regarding the Requester’s motives demonstrates, in my view, a misconception of the applicable case law and the purpose of this motion. The purpose of this motion is to determine whether the Appellant has established, among other things, that openness poses a serious risk to an important public interest. In my view, the Requester’s motives are largely irrelevant—the courts have consistently held that the open court principle applies to tribunals, as does its presumption that adjudicative records are open to the public, regardless of why someone wants access to the adjudicative records.
10In Sherman Estate v. Donovan, 2021 SCC 25, the Supreme Court held that the probability of personal information being widely disseminated may be considered when determining the gravity of the risk posed by court openness. Under this analysis, it is true that the Requester’s motives could potentially be relevant. However, as I explain below, I have found that the Appellant has not established a serious risk to an important public interest would result even if the records were to be widely disseminated. In the totality of the circumstances, I find that the Appellant has not established that there is a good reason not to hear this motion in writing.
EVIDENCE & ANALYSIS
Background
11The Requester originally made a request for various adjudicative records in respect of this matter. As noted above, the Tribunal solicited submissions from the parties. The Registrar did not make any submissions. The Appellant requested a confidentiality order. The Tribunal directed the Appellant to bring a motion in support of its request.
12By notice of motion, the Appellant sought a permanent confidentiality order over all records filed with the Tribunal in relation to its appeal. In the alternative, it requested a temporary confidentiality order over all records until the appeal had concluded. In the further alternative, the Appellant sought a confidentiality order in relation to the NOA, the NOP and their attachments.
13The Requester opposed the Appellant’s request for a confidentiality order, although they did request a partial order redacting the names, contact information and other identifying information of any complainants or third parties in the adjudicative records. It submitted that the balance of the Appellant’s motion ought to be dismissed.
14In reply, the Appellant modified its request to only a temporary or partial confidentiality order in relation to the NOA and NOP along with their attachments. The Appellant requests that the order to remain in effect at least until the Tribunal renders a decision in this matter.
Legal Framework
15The Tribunal’s adjudicative records are generally open to the public, in accordance with the open court principle: see Toronto Star v. AG Ontario, 2018 ONSC 2586. The Tribunal Adjudicative Records Act (“TARA”) requires that the Tribunal make its adjudicative records available to the public. Adjudicative records include the Notice of Appeal, the evidence that is admitted in the proceeding, parties’ submissions, and the Tribunal’s decisions, along with the other documents listed in s. 1(2) of TARA.
16As public access to adjudicative records is protected by s. 2(b) of the Canadian Charter of Rights and Freedoms, restrictions on access are exceptional. Pursuant to s. 2(2) of TARA, the Tribunal may order that all or part of an adjudicative record 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.
17Rule 13.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”) is consistent with TARA and permits the Tribunal to restrict public access to the adjudicative record on the same grounds.
18The test established by the Supreme Court of Canada for ordering publication bans provides further guidance when considering whether to override the principle that tribunal proceedings should be open to the public: Toronto Star at paras. 89-93; R. v. Mentuck, 2001 SCC 76 at para. 32. The test was recently recast by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25 (“Sherman Estate”).
19Sherman Estate outlines a three-part test. All three prerequisites must be met in order to properly impose a discretionary limit on openness:
court openness poses a serious risk to an important public interest;
the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
as a matter of proportionality, the benefits of the order outweigh its negative effects.
20The person seeking to restrict access to adjudicative records has the onus of displacing the general rule of openness. Upholding the presumption of openness generally involves a recognition that neither individual sensibilities nor mere personal discomfort associated with participating in judicial or quasi-judicial proceedings are likely to justify a restriction on the open court principle.
Positions of the Parties & Requester
21As the party requesting a confidentiality order, the Appellant bears the burden of establishing that the test for a confidentiality order has been met. The basis for the Appellant’s request can be summarized as follows:
The Appellant and its directors will suffer serious reputational harm if the adjudicative records are made public. The Appellant and its directors were not given adequate notice of the specific allegations outlined in the NOP, which the Appellant argues contains factual and legal errors. Dissemination of false accusations would cause irreversible reputational damage;
Releasing the records could prejudice 2642985’s appeal before the Tribunal;
The records contain private and confidential information relating to complainants and the Appellant and its Directors;
The request for the records, or why they are needed prior to the conclusion of the hearing, has not been sufficiently justified;
22The Requester asserts that, with the exception of personal information relating to complainants or third parties, the Appellant has not met its onus of establishing the conditions precedent for a confidentiality order. The Requester’s position is essentially that:
Potential reputational damages is not, without something more, an interest that warrants overriding the open court principle;
Potential damage from the granting access would be minimal in this case;
Making the documents public will allow the public to understand the parties’ competing positions, which fosters transparency and accountability, both of which serve to enhance public trust in administrative justice;
The Appellant’s claims regarding an unfair hearing are entirely speculative. It is presumed that the documents are open to the public – it cannot be assumed that releasing the records to the public will create a reasonable apprehension of bias; and
There is a strong public interest in protecting the sensitive personal information of complainants and other persons who are not parties to this proceeding, but whose intimate details may be contained in the adjudicative file.
Has the Appellant Established a Basis for a Confidentiality Order?
23For the reasons that follow, I find that the Appellant has not established a basis for making a confidentiality order. First, while protection from reputational harm can constitute an important public interest within the meaning of Sherman Estate, I am not satisfied that the Appellant has established a serious risk to their reputational interest such that it would rise to the level of an important public interest. I am not satisfied that the Appellant and its Directors will suffer irreversible reputational harm by the release of the NOP, NOA and their attachments—I find the Appellant’s assertions in this regard to be highly speculative.
24I accept that the Appellant and its Directors may suffer some reputational harm if the adjudicative records were to be published or otherwise disseminated. However, the purpose of the hearing before the Tribunal is to determine whether the Registrar has proven any of the allegations outlined in the NOP. If the Appellant is successful following the hearing, the Tribunal’s decision explaining as much will be available. The decision will be provided to the parties and will be publicly available under the open court principle and indeed will likely be published on in the ordinary course. In other words, the Appellant will be provided an opportunity to prove that the allegations in the NOP are false as it alleges or demonstrate that the Registrar has not proven its allegations supporting the NOP, and it will also have a decision saying as much if the Appellant is successful.
25I am also not persuaded that releasing the records might jeopardize the Appellant’s right to a fair hearing before the Tribunal, which I accept could constitute a serious risk to the administration of justice. However, by necessity, the adjudicator or adjudicators hearing this matter will be required to review the adjudicative records. This is particularly the case with the NOP, which essentially outlines the Registrar’s allegations and the Appellant’s case to meet. It is not uncommon for adjudicators to review the adjudicative file prior to a hearing. I fail to see how releasing the adjudicative records under the open court principle would somehow taint the Appellant’s hearing.
26Having concluded that the Appellant has not satisfied the first branch of the Sherman Estate test, the motion must fail, and I need not consider the other branches. Had I found that court openness poses a serious risk to an important public interest, I would have found that the Appellant has not satisfied the second and third branches of the test. In my view, a total sealing order on the NOP and NOA and their attachments would constitute a serious intrusion on the open court principle—it would deny all public access to the documents and the public would have no idea why the Registrar issued its proposal. It is not clear to me why a publication ban or carefully tailored anonymization order would not protect the interests asserted by the Appellant.
27Moreover, there is an important public interest in public access to these documents beyond that which is inherent with the open court principle. This proceeding is brought under consumer protection legislation. An order sealing the adjudicative records would deny the public knowing why the Registrar has moved to suspend the Appellant’s registration, or what the Appellant has asserted in response. In my view, the public has a strong public interest in having access to documents such as the NOP.
28The Applicant submits that a temporary order until the Tribunal has released its decision strikes a balance. While I accept that such an order could be appropriate in some circumstances, such as where a party can demonstrate court openness would result in an unfair hearing, I do not think it is appropriate here. I would have found that the benefits of a sealing order are significantly outweighed by the serious impact such an order would have on the public interest.
The Requester’s Submission
29As noted above, the Requester submitted that a confidentiality order protecting the names and other identifying information of complainants and other third parties would be appropriate. While it might be that such an order is necessary as this matter progresses, I do not think it is needed now.
30The merits portion of this proceeding has not commenced, and thus the Tribunal has not admitted any evidence. The only documents responsive to the Requester’s request at this point are the NOP, NOA and their attachments. The NOP refers to a number of appendices; however, they were not attached with the Appellant’s NOA or otherwise provided and thus are not in the Tribunal’s possession.
31While the documents in the Tribunal’s possession (i.e. NOA and NOP) contain the names of third parties, they do not contain any other information that could be considered particularly sensitive or private. I note that the Registrar, who is the author of the NOP, did not take a position on whether a confidentiality order ought to be made.
32In Sherman Estate, the Supreme Court set a high bar for obtaining a confidentiality order on the basis of privacy. The names of third parties, with little more, falls far short. It may be that as this matter progresses evidence is admitted that does warrant a confidentiality order. If that is the case, either party may request an order or indeed the Tribunal may impose one on its own initiative.
CONCLUSION
33For the reasons set out above, the Tribunal declines to impose a confidentiality order. The Appellant’s motion is dismissed.
LICENCE APPEAL TRIBUNAL
Monica Ciriello, Vice Chair
Dated: February 08, 2022