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CONSTITUTIONAL VALIDITY OF LEGISLATION - Level of government - Provincial or territorial legislation

Monday, June 11, 2018 @ 8:07 AM  


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Application by Toronto Star Newspapers challenging the constitutionality of certain provisions of the Freedom of Information and Protection of Privacy Act (FIPPA). Toronto Star was challenging the application of FIPPA to certain administrative tribunals, including the Ontario Securities Commission, the Environmental Review Tribunal, the Ontario Civilian Police Commission, and the Human Rights Tribunal of Ontario. The controversy related to records of tribunal proceedings and the means by which such documents were accessed by the press outside of the adjudicative hearing itself. Toronto Star had documented difficulties in obtaining access to tribunal schedules before the hearing had taken place and inspecting adjudicative records after the hearing had ended. Toronto Star took the position that by applying to tribunals that adjudicated disputes, presided over adversarial processes, and acted judicially or quasi-judicially, FIPPA violated the open courts principle embedded in section 2(b) of the Charter. Toronto Star submitted that FIPPA burdened the right of access and was therefore contrary to the requirement of open hearings. The respondent Attorney General took the position that FIPPA was a tool to promote access to information held by public and administrative bodies and therefore fostered openness. Toronto Star stressed the journalistic imperative of timely disclosure and the newsworthiness of the documents sought. The Attorney General stressed the need to accurately balance the competing imperatives of privacy rights and public access under FIPPA.

HELD: Application allowed. There were two problems with FIPPA. First, it substantively infringed section 2(b) of the Charter by presuming non-disclosure of a broadly defined version of personal information. Secondly, it procedurally infringed section 2(b) of the Charter by causing delay in accessing those adjudicative records that it did allow to be disclosed. The Attorney General successfully justified the procedural infringements as the impairment was minimal. However, the Attorney General failed to justify the substantive breach. The open courts principle was a fundamental one and personal information and privacy concerns were secondary to it. The onus had to remain on the party seeking to keep the information from the public rather than the other way around. The deleterious effects of the presumption against disclosure found in section 21(1) and related provisions of FIPPA were real and substantial. Those provisions were of no force or effect. However, the declaration of invalidity of that aspect of FIPPA was suspended for 12 months.

Toronto Star Newspapers Ltd. v. Ontario (Attorney General), [2018] O.J. No. 2256, Ontario Superior Court of Justice, E.M. Morgan J., April 27, 2018. Digest No. TLD-June112018002