Applying the Openness Principle to Administrative Tribunals 

Posted March 19, 2018
By Abbas Kassam

The Toronto Star has brought an application before the Ontario Superior Court asking for a declaration that the open court principle should apply to administrative tribunals – that their proceedings and records be public in the same way that court proceedings and records are public.

The openness principle allows the public, and surrogates for the public, such as the media or citizen journalists/activists, to have access to court proceedings and associated documents. Any restrictions to the openness principle must be justified under the Supreme Court’s Dagenais/Mentuck test -- ensuring a fair and just adjudication system. The openness principle, in its facilitation of publicity, has been described by Jeremy Bentham as the “very soul of justice”:

In the darkness of secrecy, sinister interest, and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and surest of all guards against improbity. It keeps the judge himself while trying under trial.

Administrative tribunals operate similar to courts in that they adjudicate matters. However, they do so in specialized areas, such as labour relations boards, landlord and tenant boards and human rights tribunals. In theory, they are supposed to offer more streamlined and efficient processes to make quasi-judicial decisions.  

Currently, in Ontario there is inconsistent access to administrative tribunals records and proceedings either at the discretion of the respective tribunal or through access-to-information requests under the Freedom of Information and Protection of Privacy Act (FIPPA). Because the openness principle does not currently apply to tribunals, there has been a good deal of secrecy, misinformation, selective information, delay, and cost. The result is that the public has had no consistent right and ability to see how decisions are made, and on what basis.

The former Chief Justice of the Supreme Court Beverley McLachlin has stated that “since openness permits the community to see justice done, it has a therapeutic function”. Furthermore, commentators have suggested that public confidence in tribunal systems will increase with increased openness. In the US, courts have found that the press and the public may be the only guardian of potential deportees in immigration administrative tribunal hearings where individuals may not have legal representation. 

Fully applying the openness principle to administrative tribunals, rather than relying on the broad discretion of tribunals or inconsistent and slow procedures of freedom of information in granting access, enables the public to have more confidence in the administration of justice. Failure to do so facilitates secrecy which nurtures injustice.  

Abbas Kassam is an associate at Bersenas Jacobsen Chouest Thomson Blackburn LLP (“BJCTB”). BJCTB is counsel for the intervener, Canadian Journalists for Free Expression, in the Toronto Star’s Charter Challenge.