PRIVACY COMPLAINT REPORT

PRIVACY COMPLAINT PC17-15

Human Rights Tribunal of Ontario

September 10, 2018

Summary: The Office of the Information and Privacy Commissioner of Ontario received a complaint alleging that the Human Rights Tribunal of Ontario (the Tribunal) contravened the Freedom of Information and Protection of Privacy Act  (the Act ) when it disclosed personal information in a public decision. A complaint was opened to review the Tribunal’s use and disclosure of personal information. In this report, I find that the Tribunal’s decisions are not covered by the privacy rules in Part III of the Act because the information in those decisions is maintained for the purpose of creating a record available to the general public.

Although I find that the Tribunal’s decisions are outside the scope of Part III of the Act, I recommend that the Tribunal respect privacy data minimization practices and ensure that only the personal information that is necessary in order to achieve the Tribunal’s purposes be included in its decisions.

Statutes Considered: Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31, sections 2 , 21 , 37 ; Statutory Powers Procedures Act, R.S.O. 1990, c. S.22, sections 9(1) , 20 , 25.0.1 , 25.1(1) ; Human Rights Code , R.S.O. 1990, c. H.19, section 41 .

Orders and Investigation Reports Considered: Order 11, P-230, MC09-56, PO-1880, upheld on judicial review in Ontario (Attorney General) v. Pascoe, [2002] O.J. No. 4300 (C.A.).

P-316, P-651, MC09-56, M-387, M-387, P-1364, PC-980049-1,

I93-009M, Order P-1316

Cases Considered: Toronto Star Newspapers Ltd. v. Attorney General of Ontario, 2018 ONSC 2586, Germain v. Automobile Injury Appeal Commission, 2009 SKQB 106 (CanLII), Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 SCR 560, 1989 CanLII 131 (SCC), Canadian Broadcasting Corporation v. New Brunswick (Attorney General) 1996 3 S.C.R 480, R. v. Canadian Broadcasting Corporation, 2010 ONCA 726, Dagenais v. Canadian Broadcasting Corporation [1994] 3 SCR 835, Mentuck v. The Queen [2001] 3 SCR 442, 2001 SCC 76, Sierra Club of Canada v. Canada (Minister of Finance) [2002] 2 SCR 522, 2002 SCC 4, CBC v Canada (Attorney General), 2011 SCC 2(CanLII), Ocean Port Hotel Ltd v. British Columbia (General Manager, Liquor Control and Licensing Branch) [2001] S.C.J No. 17, 2001 SCC 52, Pacific Press v. Canada Minister of Employment and Immigration (1991), 127 NR 325 (FCA), Southam Inc. v. Canada (Attorney General), [1997] 36 O.R. (3d), Edmonton Journal v. Alberta (Attorney General) [1989] 2 S.C.R. 1326

BACKGROUND:

[1]  The Office of the Information and Privacy Commissioner of Ontario (the IPC) received a complaint under the Freedom of Information and Protection of Privacy Act (the Act) relating to the Human Rights Tribunal of Ontario’s publication of personal information in its decisions. The complainant asserted that the Human Rights Tribunal of Ontario (the Tribunal) contravened the Act when its adjudicator included personal information about the complainant in a decision and subsequently made the decision available on the Internet.

[2]  The complainant filed an application to the Tribunal which resulted in a hearing and ultimately the above noted decision.

[3]  Upon completion of the hearing process, the adjudicator issued a publicly available decision on the matter. Decisions of the Tribunal are published on the public non-profit website called CanLII. CanLII provides free access to court judgments, tribunal decisions, statutes and regulations for all Canadian jurisdictions. Decisions of the Tribunal can also be found on Lexis and the Canadian Human Rights Reporter.

[4]  The complainant emailed the Tribunal to request that it redact his personal information from the decision. The Tribunal responded by e-mail advising the complainant that if he wished to pursue a request for anonymization he must complete a Request for Reconsideration form. The complainant did not complete a Request for Reconsideration.

[5]  The complainant subsequently filed a complaint with the IPC. The complainant complained that the Tribunal decision (the decision) contained his personal information and the decision was posted on the Internet.

[6]  The personal information at issue in this matter includes the complainant’s name and test scores.

[7]  The complainant seeks to remove his personal information from the decision, as the complainant believes the disclosure was a violation of the Act .

INVESTIGATION:

[8]  The Tribunal is an administrative tribunal that is established by the Human Rights Code  (the Code ) and is authorized to resolve claims of discrimination and harassment brought under the Code . [1]

[9]  If an individual in Ontario believes he or she has faced discrimination and/or harassment in employment, housing, contracts, membership in trade and vocational associations, or goods, services and facilities, then he or she may file an application to the Tribunal.

[10]  Section 43(1)  of the Code  allows the Tribunal to make rules governing its practice and procedures when dealing with an application of alleged discrimination and/or harassment.

[11]  In addition, section 42(1)  of the Code  states that the Statutory Powers Procedures Act (the SPPA) applies to a proceeding before the Tribunal. The SPPA is a procedural statute that provides a standard set of minimum rules for the functioning of most administrative tribunals in Ontario. With respect to this complaint, it is important to note that sections 25.0.1 & 25.1(1) of the SPPA allow a tribunal to determine its own practices and procedures and establish rules governing any such practices or procedures. The Tribunal has established practices and procedures related to its proceedings and the standards in the SPPA apply to such proceedings.

[12]  The Code  also requires that if the Tribunal is going to exercise its statutory power of decision, the Tribunal has to provide parties an opportunity for an oral hearing before making a decision, with reasons in writing, on the allegations.

[13]  The Tribunal has asserted that it has the authority to hold public hearings and issue public decisions and that the inclusion of personal information in its decisions is not a violation of the Act .

[14]  As part of my investigation, I requested and received written representations from the Tribunal with respect to this matter. The representations were provided to the complainant who submitted a written response to the Tribunal’s representations.

ISSUES:

[15]  The issues raised by the complaint are as follows:

1. Does the information at issue qualify as “personal information” under section 2(1) of the Act ?
2. Does section 37 of the Act  apply to the personal information?
3. If section 37 does not apply, was the personal information used or disclosed in compliance with sections 41 and 42 of the Act ?

DISCUSSION:

Issue 1:  Does the information at issue qualify as “personal information” under section 2(1) of the Act?

[16]  In order to determine whether the Tribunal has complied with the Act , it is first necessary to decide whether the information at issue in this complaint is personal information.

[17]  Section 2(1) of the Act  states:

“personal information” means recorded information about an identifiable individual, including,

(a) information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,

(b) information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,

(c) any identifying number, symbol or other particular assigned to the individual,

(d) the address, telephone number, fingerprints or blood type of the individual,

(e) the personal opinions or views of the individual except where they relate to another individual,

(f) correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence,

(g) the views or opinions of another individual about the individual, and

(h) the individual’s name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual;

[18]  The list of examples of personal information under section 2(1) is not exhaustive. Therefore, information that does not fall under paragraphs (a) to (h) may still qualify as personal information. [2]

[19]  The test to determine whether a given record contains personal information is whether it is reasonable to expect that an individual may be identified if the information is disclosed. [3]

[20]  At issue in this complaint is the information included in the Tribunal’s decision that was posted on the Internet. The information in question and included in the decision are the complainant’s name and test scores.

[21]  In my view, this information meets the requirement of paragraph (h) of the definition of “personal information”. Accordingly, I find the information in question qualifies as “personal information” as set out under section 2(1) of the Act.

Issue 2:  Does section 37 of the Act apply to the personal information?

[22]  Section 37 of the Act  states:

This Part does not apply to personal information that is maintained for the purpose of creating a record that is available to the general public.

[23]  “This Part” refers to Part III of the Act, which sets out provisions for the protection of individual privacy. If section 37 applies to the record, then the personal information, and the record that contains it, would fall outside the privacy protections in Part III of the Act.

Tribunal’s Representations:

[24]  The Tribunal acknowledged that it is an institution to which the Act  applies. However, the Tribunal does not believe that the Act  applies to the decision, which is the record at issue in this complaint. The Tribunal’s view is that the open court principle and the Tribunal’s ability, pursuant to the relevant legislation, to control its own proceedings, allows it to determine what information is included in its decisions, to make the decision available to the public and to post it on the Internet.

[25]  The Tribunal explained that the open court principle is a fundamental tenet of the administration of justice and that the open court principle applies to courts as well as other quasi-judicial proceedings such as the Tribunal hearing process. The Tribunal advised that because the open court principle applies, it presumptively guarantees public access to the Tribunal’s decisions and the identity of the litigants.

[26]  The Tribunal further explained that it can disclose personal information relating to records captured within the scope of the open court principle without the consent of individuals because ensuring the appropriate operation of the open court principle is a necessary component of controlling its processes and fulfilling the Tribunal’s quasi-judicial purpose and mandate.

[27]  The Tribunal stated that the Code and the SPPA establish its mandate and role. The Code  provides the Tribunal with the jurisdiction to exercise the powers conferred on it by or under the Code and to determine all questions of fact or law that arise in any application before it, including the determination of the quasi-constitutional rights [4] arising under the Code .

[28]  The Tribunal advised that the SPPA allows Tribunals to create their own rules and otherwise control their own proceedings, while the Code  allows the Tribunal to adjudicate and resolve disputes arising under the Code . The Code  requires the Tribunal to develop practices and procedures that offer the best opportunity for a fair, just and expeditious resolution.

[29]  Specifically, section 41  of the Code  allows the Tribunal to adopt procedures to control how an application is processed, heard and decided. As a result, rules have been created that specifically address the public nature of the Tribunal’s proceedings, including that hearings are open to the public, that decisions are available to the public and that the Tribunal may make an adjudicative order restricting access to personal information of litigants where it considers it appropriate. [5]

[30]  In addition to the above, the Tribunal argued that the open court principle applies to administrative tribunals. The Tribunal explained that it decides quasi-constitutional issues in highly adversarial proceedings that are subject to evidentiary and procedural rules similar to court proceedings. The Tribunal advised that it is court-like in its functions and operations and consequently the open court principle applies to its adjudicative activities.

[31]  The Tribunal stated that a court in at least one other Canadian jurisdiction found that an aspect of a tribunal’s control over its proceedings includes making decisions about the publication of information about those proceedings. [6] In Germain v. Automobile Injury Appeal Commission [7] (Germain), the Saskatchewan Court found that provincial privacy legislation did not prevent a provincial tribunal from exercising control over the publication of its decisions.

[32]  The Tribunal also raised a concern that a complaint to the IPC is effectively a collateral attack on the Tribunal’s decision and a challenge of the decision should be made to the Divisional Court by way of application for judicial review.

Complainant’s Representations:

[33]  The complainant’s position is that the Act  does apply to the Tribunal and the decision (the record at issue in this complaint).

[34]  The complainant believes that the Tribunal should be required to follow the Act ’s rules regarding the collection, use and disclosure of personal information. The complainant noted that the Act  identifies specific instances where organizations, such as the Tribunal, can publish personal details without consent of the individual. The complainant’s position is that the publishing of his personal information in the Tribunal decision is in violation of sections 23, 42(1) and 61(a) of the Act .

[35]  The complainant also believes that the Tribunal’s policies should not prevail over the Act . The complainant acknowledged that the Tribunal’s practice directions allow for the publishing of the Tribunal’s decisions, however, he argued that the practice direction is only a policy and the requirements of the Act  should trump any written policy. The complainant believes that the Tribunal has exceeded its mandate when it published his personal information on the Internet.

[36]  The complainant also believes that there is an inconsistency between the Act and the open court principle. The complainant argued that where there is an inconsistency between the Act and the open court principle, the open court principle must be modified to conform to the Act .

[37]  The complainant advised that the publishing of his personal information in the decision has resulted in the complainant losing several job opportunities. The complaint explained that when his name is searched on google a news article that includes the details of the Tribunal decision is displayed. The complainant believes that employers routinely complete google searches on prospective candidates and will lose interest in him as a candidate after seeing details included in Tribunal decisions. As a result, the complainant believes that the continued display of his personal details in the decision has cost him employment opportunities.

[38]  The complainant has also requested that this matter be forwarded to the Ontario Divisional Court given that the IPC is unable to award a complainant financial damages.

Analysis:

[39]  In order to satisfy the requirements of section 37, the Tribunal must establish that the information in question is “personal information”, and that the personal information is maintained by the institution for the purpose of creating a record that is available to the general public. [8]

[40]  Under “Issue 1” of this report, I have determined that the information in question is personal information for the purposes of section 2(1) of the Act .

[41]  In this case, there is no dispute that the decision is available to the general public. The Tribunal’s decisions are accessible to the public without charge via CanLII.

[42]  I will next consider whether the purpose for which the personal information is maintained is to create a publicly available decision.

[43]  The Tribunal’s mandate is adjudicating human rights applications and determining whether there has been a violation of the Code . At the end of its hearing process, the adjudicator issues a decision, which sets out and explains the outcome of the application.

[44]  The Code and the SPPA allow the Tribunal to develop its practices and procedures and make rules governing any such practices or procedures. Section 9(1) of the SPPA also requires that oral hearings by the Tribunal be open to the public except in limited circumstances:

9(1)  An oral hearing shall be open to the public except where the tribunal is of the opinion that:

(a) matters involving public security may be disclosed; or

(b) an intimate financial, or personal matter or other matters may be disclosed at the hearing of such a nature that the desirability of avoiding disclosure thereof in the interest of any affected person or public interest outweighs the desirability of adhering to the principle that hearings be open to the public,

in which case the tribunal may hold the hearing in the absence of the public.

[45]  Neither the Code nor the SPPA provide the Tribunal with any specific authority to publish or not publish its decisions.

[46]  The Tribunal’s Rules of Procedure states that its hearings are open to the public and all written decisions of the Tribunal are available to the public. [9] The Tribunal’s practice direction on hearings states that the Tribunal’s decisions are published on the CanLII website. [10] The “Decision” section of the Tribunal’s website provides a link directly to CanLII. The Tribunal decisions are not posted directly to the Tribunal’s website.

[47]  The Tribunal also has a practice direction with respect to anonymization. [11] The practice direction states that the Tribunal can make an order to protect personal or sensitive information of a party or a participant in a Tribunal hearing and that every party or participant has an opportunity to submit a request and have their privacy issues considered.

[48]  I accept the Tribunal’s submissions that the open court principle applies to its proceedings. The open court principle is rooted in four main concerns that were summarized in Edmonton Journal v. Alberta (Attorney General):

(1) To maintain an effective evidentiary process; (2) to ensure a judiciary and juries that behave fairly and that are sensitive to the values espoused by the society; (3) to promote a shared sense that our courts operate with integrity and dispense justice; and (4) to provide an ongoing opportunity for the community to learn how the justice system operates and how the law being applied daily in courts affects them. [12]

[49]  The first concern is about the accountability of those appearing before decision-makers and not decision-making bodies themselves. Openness at tribunals tends to improve the quality of testimony and for that reason is conducive to the pursuit of truth in adjudicative proceedings.

[50]  The other three concerns - which the Tribunal described as oversight of decision-makers, the integrity of the administration of justice, and the educational and democracy-enhancing features of open courts - link the open court principle to the right of freedom of expression guaranteed by section 2(b) of the Charter. The Supreme Court of Canada’s decision in the Canadian Broadcasting Corporation v. New Brunswick (Attorney General) stated:

The principle of open courts is inextricably tied to the rights guaranteed by s. 2(b). Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings. [13]

[51]  The interests underlying the open court principle are not absolute and sometimes in order to provide proper administration of justice restrictions on access can occur. However, if such restrictions are applied, this must be done in a manner consistent with section 2(b)  of the Charter of Rights  and Freedoms.

[52]  Although the open court principle refers specifically to courts, it can also apply to tribunals. The courts have commented on the application of the open court principle to quasi-judicial proceedings of tribunals. The decision in R. v. Canadian Broadcasting Corporation found that:

The open court principle, permitting public access to information about the courts, is deeply rooted in the Canadian system of justice. The strong public policy in favour of openness and of “maximum accountability and accessibility” in respect of judicial or quasi-judicial acts pre-dates the Charter : Nova Scotia (Attorney General) v. MacIntyre, 1982 CanLII 14 (SCC), [1982] 1 S.C.R. 175, [1982] S.C.J. No. 1, at p. 184 S.C.R. As Dickson J. stated, at pp. 186-87 S.C.R.: At every stage the rule should be one of public accessibility and concomitant judicial accountability” and “curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance”. [14]

[Emphasis added]

[53]  The Tribunal argued that the open court principle applies to a tribunal if it is a statutory tribunal, exercises judicial or quasi-judicial functions and involves an adversarial type process that results in decisions affecting rights. The Tribunal argues that this criteria has been developed and applied by the courts and clearly determines that the open court principle can apply to administrative tribunals if they meet the criteria. [15] The Tribunal stated that it meets all of the above criteria, and I agree.

[54]  In the decision in Germain, referenced above, the Saskatchewan Court specifically considered the issue of the publication of personal information in an administrative tribunal decision:

The publication of the decisions is in my view incidental and necessary to the proper functioning of this tribunal as it is to many other tribunals with an adjudicative function which consider precedent including courts and it generally assists others who appear before the Commission.

[55]  The Court in Germain concluded that the administrative tribunal under review had the authority to publish its decisions, including on the Internet, despite the absence of statutory or regulatory provisions specifically allowing it to do so. [16]

[56]  The Court also stated the following, at paragraph 73:

…it seems illogical that members of the public could sit at the hearing and listen to all of the evidence but not have access to the decision of the Commission. The written decision is the last piece of the hearing process. Public access to decisions made by the Commission is important to assist individuals in presenting their claims and understanding the decision-making process of the Commission and to further the principle of public access to adjudicative bodies.

[57]  Additionally, in a previous investigation report, I93-009M, the IPC determined that arbitration decisions are the type of public record contemplated in section 37 of the Act and that section 37 could be relied on to exclude the arbitration decision from the privacy provisions of Part III of the Act. [17]

[58]  I find that the Tribunal is an administrative tribunal that is given the authority from the Code and the SPPA to develop its own processes, procedures and rules in deciding applications brought under the Code . The Tribunal’s processes, procedures and rules provide that the decisions of the Tribunal will be made public unless the adjudicator decides otherwise. The publication of decisions is an aspect of the Tribunal’s control over its own process and the information that is included in the Tribunal’s decisions is within the adjudicator’s discretion in providing reasons for those decisions.

[59]  The Tribunal’s decision on a matter and its interpretation of the Code  are of vital interest to parties, party representatives and members of the public who are considering filing an application, but also to the general community who wish to understand how the Tribunal does its work. The publication of its decisions supports public confidence in the justice system, serves an educational purpose, promotes accountability by the Tribunal for its decision-making, and ensures that the public has the information necessary to exercise the Charter  right to freedom of expression.

[60]  In this context, I find that Tribunal decisions are maintained both in order to provide the parties with the outcome of the decision, and for the purpose of the publication of the Tribunal’s decisions.

[61]  In light of the above, I find that section 37 is applicable to Tribunal decisions. The personal information in those decisions is maintained for the purpose of creating a record that is available to the general public. Since section 37 applies, the Tribunal’s decisions are excluded from the privacy provisions of Part III of the Act. Therefore, section 42 is not applicable to the circumstances of this complaint. In addition, the complainant also raised section 23 as part of his arguments. Section 23 is under Part II of the Act, which is the Freedom of Information section of the Act . Given that this matter does not deal with a request to access records section 23 is not applicable.

[62]  Since the parties provided their submissions, the Superior Court of Justice released its decision in Toronto Star Newspapers Ltd. v. Attorney General of Ontario [18] holding that the open court principle applies to the “adjudicative records” of tribunals filed with or generated by the tribunal as part of its public hearing process. [19] The Court specifically included “the decision of the tribunal and the reasons therefor” within the category of tribunal records accessible to the public under the open court principle. [20]

[63]  In Toronto Star, the Court went on to declare that the application of the exemption for personal information at section 21 and related provisions of the Act  breached the open court principle at section 2(b)  of the Charter  and, to that extent only, those provisions are of no force or effect. While the Court suspended its declaration of invalidity for a period of 12 months, [21] the Court’s ruling that the open court principle applies to tribunal decisions supports the submissions of the Tribunal in this complaint and my analysis, as set out above.

[64]  Although I find that the Tribunal’s decisions are outside the scope of Part III of the Act, I recommend that the Tribunal continue to apply data minimization principles in the drafting of its decisions and include only personal information necessary to achieve the purpose of those decisions.

[65]  I note that the Tribunal had advised the complainant that if he wished to pursue a request for anonymization he must complete a Request for Reconsideration form. The complainant did not complete a Request for Reconsideration.

[66]  The complainant did request that the IPC forward this complaint to Divisional Court. The IPC does not forward proceedings before it to the Divisional Court. If the complainant wishes to pursue litigation at the Divisional Court against the Tribunal, he must initiate the proceedings there on his own.

[67]  The Tribunal also raised a concern that a complaint to the IPC is a collateral attack on the Tribunal’s decision and that a challenge of the decision should be made to the Divisional Court by way of application for judicial review. Given that I find that the Tribunal’s decisions are not covered by the privacy rules in Part III of the Act because the information in the decisions is maintained for the purpose of creating a record available to the general public, there is no need to address this issue.

CONCLUSION:

1. The information at issue is “personal information” as defined by section 2(1) of the Act .
2. Section 37 applies to the record.

Original Signed by:		September 10, 2018
Alanna Maloney
Investigator