Canadian Council of Administrative Tribunals (CCAT)
“My name is Nobody” :
Privacy, Confidentiality and the Open Court Principle in Administrative Tribunals
May 13 - 15, 2012
Table of Contents
Historical Underpinnings of the Open Court Principle
- General Rule: the name of a party, witness is not “nobody”.
- Public Accountability of a specific person for what they have to say.
- Covertness in proceedings is the exception and openness the rule.
- Fosters pursuit of truth.
- Improves the quality of testimony generally.
- Produces in the witness a “disinclination to falsify”.
- The media is the agent of the public in adjudicative proceedings.
Open Court Principle
- Party who is asking for the restriction to public access has the burden of establishing that the open court principle should not apply.
- Applies to hearings and to pleadings:
- “One of the basic tenets of our legal system and of our democratic system of Government is that court hearings and decisions as well as court pleadings and evidence are accessible to the public.” Grace Singer v Canada (Attorney General), 2011 FCA 3
- Presumption of openness refuted in limited circumstances only.
- Recognized in the charter under section 2(b):
- Everyone has the following fundamental freedoms: (…)
- (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
- The Dagenais/Mentuck test - to balance countervailing rights of freedom of expression, the administration of justice and privacy.
- The SCC decision in Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41,  2 SCR 522 adapted Dagenais/Mentuck:
- [A restriction on the Open Court Principle will apply where :]
- it is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonable alternative measures will not prevent the risk; and
- the salutary effects of the order outweigh its deleterious effects.
The Open Court Principle and Administrative Tribunals
- A functional approach, that considers the continuum of judicial or quasi-judicial functions points toward the need to balance privacy considerations with the open court principle.
- Factors might include: the mandate, underlining values, adherence to the duty of fairness, engagement in quasi-judicial functions, adversarial proceedings.
Application of the Open Court Principle to Administrative Tribunals
- Southam Inc v Canada (Minister of Employment and Immigration),  FCJ no 658 (QL):
- … statutory tribunals exercising judicial or quasi-judicial functions involving adversarial-type processes which result in decisions affecting rights truly constitute part of the "administration of justice".
- The legitimacy of such tribunals' authority requires that confidence in their integrity and understanding of their operations be maintained, and this can be effected only if their proceedings are open to the public.
- Germain v Saskatchewan (Automobile Injury Appeal Commission), 2009 SKQB 106 (available CanLII).
- The open court principle applies to quasi-judicial tribunals.
- The principle is not restricted to courts only, but is a theme running through the administration of justice in this country.
- The publication of the decisions is necessary to the tribunal’s proper functioning as it is to many other tribunals with an adjudicative function.
- El-Helou 2012-PT-01: interlocutory decision.
- Functional approach applied to determine whether open court principle applies.
- Mandate and purpose of the Tribunal: weighs engaged in quasi-judicial adversarial in nature; rights and duties of parties are at stake; applies principles of natural justice; adjudicative; is not presumed to hold hearings in camera.
- Information relative to allegations in the complaint that were not founded may still constitute relevant evidence.
- Tribunal found that the Privacy Act exceptions apply (consistent authorized by law; public interest under section 8; and the publicly available exception under section 69(2)).
- Privacy Act must be balanced with other values.
- Tribunal also commented on the exception in subsection 69(2) of the Privacy Act. The Tribunal applies the open court principle. Therefore, personal information before it is publicly available.
- Dagenais/Mentuck test not met.
Public Service Labour Relations Board: Tipple v Deputy Head (Department of Public Works and Government Services), 2009 PSLRB 110 (available on CanLII).
- Application by the CBC in the course of hearing of grievance against termination of employment.
- CBC requested timely access to exhibits entered in evidence.
- Respondent deputy head objected arguing that open court principle does not apply to administrative tribunals in same fashion as it does to courts.
- PSLRB applied the Dagenais/Mentuck test and determined that the first part of that test had not been met.
- A sufficient evidentiary basis had not been established that granting such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk.
Public Service Staffing Tribunal: Boivin v Canada (President of the Canada Border Services Agency), 2010 PSST 6 (available on CanLII).
- Complainant asked that the reasons for decision and style of cause be depersonalized. The Public Service Commission objected.
- Given its mandate and its quasi-judicial nature, the Tribunal found it was bound by the rules governing the open court principle.
- Legal principles and evidence are applied in coming to determinations on complaints before the Tribunal.
- Hearings are held in public.
- Tribunal decisions are of interest to the parties in conflict as well as to other stakeholders with a valid interest in their decisions.
- Openness is integral to the independence and impartiality of the courts.
The Open Court Principle is Not Absolute
- Statutes may require that proceedings be held in private.
- Dagenais/Mentuck test may apply to restrict the application of the open court principle.
- Procedural requests for privacy and protective orders such as:
- confidentiality orders, publication bans, orders for depersonalized versions of a pleading or other document, a document be “for counsel’s eyes only”, an order that a proceeding be held in camera.
- Informer privilege.
- Does the Privacy Act apply?
Posting of Full Decision on Website
- Open court principle and section 69(2) of the Privacy
- Tribunals are masters of their own procedure;
- Procedural fairness;
- Reproduction of Federal Law Order;
- Consistent with the best practices of courts;
- Access to Information Act.
- As a matter of policy, it is important to balance the principle of open court with privacy issues.
- Canadian Judicial Council Protocol – a number of tribunals have adopted the protocol approved by the Canadian Judicial Council in March 2005 regarding the use of personal information in judgments.
- Web Robot Exclusion – this exclusion protocol is recognized by internet search engines (and prevents internet searching of full-text versions of decisions).
- Privacy Statement – many tribunals now have either a statement or FAQs (or Qs and As) that include issues pertaining to information. Where there is a statement, the initiating party is made aware at the outset that the open court principle applies and that its proceedings are public.
Canadian Council of Administrative Tribunals
- Encourages consistency.
- The CCAT Protocol is derived from the Canadian Judicial Council Protocol and the Heads of Federal Administrative Tribunals Forum (HFATF).
Canadian Judicial Council Protocol
- Recognizes the primacy of the open court principle over privacy rights.
- Provides a focus that balances the open court principle and privacy expectations.
- Includes only personal information that is relevant and necessary to support reasons.
- Leaves it to the decision-maker to assess how to balance the open court principle and privacy expectations.
The Heads of Federal Administrative Tribunals Forum (HFATF)
- Informs of recent administrative law or governance developments.
- Shares innovative practices.
- Takes a concerted approach where appropriate.
- Discusses issues of common interest.
- Has provided guidance that includes adopting the Canadian Judicial Council’s Protocol for the Use of Personal Information.
- For those administrative tribunals that operate in accordance with the open court principle, the HFATF encourages a consistent approach to the use of personal information by administrative tribunals.
The HFATF Believes Any Tribunal Policy in This Regard Should…
- Strike a balance between the open court principle and the privacy concerns of individuals availing themselves of rights before administrative tribunals.
- Ensure individuals availing themselves of rights before it are aware that the tribunal is bound by the open court principle.
- Set out measures adapted to the tribunal’s specific needs but in conformity with general principles for the protection of personal information.
- Avoid placing administrative tribunals in the position of being required to prepare multiple versions of their decisions.
- Assist administrative tribunals in determining the extent to which names and specific personal information should be included in their reasons for decisions.
- Recognize of the Canadian Judicial Council Protocol as to guidance on assessing what personal information is relevant and necessary.
- Recognize the web robot exclusion protocol.
CCAT – Adoption of CJC Protocol and HFATF Guidelines
- With CJC Protocol and HFATF Statement on Personal Information in mind, CCAT encourages the following:
- Where the organization operates with the open court principle or its legislation specifies that its proceedings are in the public interest; and
- Where full texts of written decisions are posted on its website:
- provide a hyperlink on its website to the CCAT statement, to the CJC Protocol on the CJC’s website;
- adopt the CJC Protocol;
- make the CJC Protocol part of any training program offered to its decision makers.
- Apply the web robot exclusion protocol to all full text decisions containing personal information that are posted on its website;
- Give notice to individuals availing themselves of their rights before it, that it posts its decisions in full. For e.g:
- on its website;
- in its administrative letters opening case files; and
- on the forms that parties must complete to initiate proceedings.
- AB (Litigation Guardian of), CD v Bragg Communications Inc, 2011 NSCA 26, leave to appeal to SCC granted, 34240 (May 10, 2012) .
- AG (Nova Scotia) v MacIntyre,  1 SCR 175 (available on CanLII) .
- Boivin v Canada (President of the Canada Border Services Agency), 2010 PSST 6 (available on CanLII) .
- Dagenais v Canadian Broadcasting Corp,  3 SCR 835 (available on CanLII) .
- El-Helou v Courts Administration Service, 2012 CanLII 30713 (CA PSDPT) .
- Named Person v Vancouver Sun, 2007 SCC 43,  3 SCR 253 .
- Prassad v Canada (Minister of Employment and Immigration),  1 SCR 560 (available on CanLII) .
- R v Mentuck, 2001 SCC 76,  3 SCR 442 .
- Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41,  2 SCR 522 .
- Southam Inc v Canada (Minister of Employment and Immigration),  FCJ no 658 (QL) .
- Germain v Saskatchewan (Automobile Injury Appeal Commission), 2009 SKQB 106 (available on CanLII) .
- Tipple v Deputy Head (Department of Public Works and Government Services), 2009 PSLRB 110 (available on CanLII) .
- Vancouver Sun (Re), 2004 SCC 43,  2 SCR 332 .
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