In February 2017, the Toronto Star Newspapers ("Toronto Star") initiated an application in the Ontario Superior Court seeking a declaration that the application of the Freedom of Information and Protection of Privacy Act, RSO 1990, c F.31 (“FIPPA”), to certain administrative agencies performing adjudicative functions was unconstitutional. The Toronto Star specifically argued that FIPPA’s application to these adjudicative agencies violated the open court principle embedded in section 2(b) of the Canadian Charter of Rights and Freedoms (“Charter”).
The only named Respondent in the application was the Attorney General of Ontario (the “AG”); however, the focus of the application was the applicability of FIPPA to 15 adjudicative, administrative agenciesand the manner in which access to "adjudicative documents" in the control of these agencies is determined and provided to external parties. The Workplace Safety and Insurance Appeals Tribunal (“WSIAT”) was one of the adjudicative agencies specifically identified in the application.
In light of several unique aspects of the WSIAT's governing legislation and adjudicative processes, the WSIAT sought to be added as an individual party to the application and was added on consent in October 2017. Throughout the proceeding, the WSIAT was expertly represented by the law firm Paliare Roland Rosenberg Rothstein LLP.
In late March 2018, after reviewing the WSIAT's factum, the Toronto Star withdrew the application against the WSIAT on consent and with prejudice.
Justice Morgan's decision, Toronto Star v. AG Ontario, 2018 ONSC 2586, was released on April 27, 2018. The decision was subsequently re-released on April 30, 2018 to explicitly recognize that the application and decision did not apply to the WSIAT.
Justice Morgan ultimately found that the application of FIPPA to the adjudicative documents of the remaining agencies named in the application infringed section 2(b) of the Charter and was not saved by section 1 and, therefore, was of no force or effect. Justice Morgan suspended the declaration of invalidity for 12 months from the date of the decision.
On June 30, 2019, the Tribunal Adjudicative Records Act, 2019, SO 2019, c 7, Sch. 60 (“TARA”), came into force. TARA responds to Justice Morgan’s decision and allows members of the public, including the media, to access “adjudicative records” at certain administrative boards and tribunals without needing to make a request under FIPPA. TARA establishes a default principle that all “adjudicative records”, as defined by the Act, are available to the public, subject to the issuance of a confidentiality order.
As TARA is not applicable to the WSIAT, the WSIAT’s privacy obligations in relation to adjudicative records differ significantly from other administrative, adjudicative agencies. Specifically, the WSIAT continues to be obligated to protect the confidentiality of all personal information contained in WSIAT adjudicative records and, in particular, personal health information, pursuant to both FIPPA and the Workplace Safety and Insurance Act, 1997, SO 1997, c 16, Sch. A (“WSIA”).