The Toronto Star has recently started a legal challenge that, if successful, may result in human rights, occupational health and safety, and other complaints made against employers being made public, despite the fact that those allegations are unproven.
Most hearings today are not handled by the courts but are instead administered by a collection of boards and tribunals established by the province of Ontario. These agencies were created in order to reduce the number of cases heard by the courts and, at least in theory, to reduce the costs involved where someone claims that another person (or company) has violated the law.
As a result, when employees launch a complaint against their employers, the parties often find themselves before the Ontario Human Rights Tribunal, the Ontario Labour Relations Board, the Workplace Safety and Insurance Board, and others.
While both court proceedings and tribunal hearings are open to the public, tribunals generally require that people wanting specific information about a proceeding file a Freedom of Information request. These requests are not automatically granted, and may be denied for a variety of reasons.
The Star’s legal challenge against these agencies argues that their refusal to provide information about ongoing cases violates the Charter of Rights and Freedoms. As the Star stated today on its website:
“(Freedom of information law) was designed to allow access to information from government agencies, not adjudicative documents from tribunals exercising judicial functions,” the notice of application reads. “(Tribunal) records, including pleadings, exhibits, legal briefs and all other documents on which adjudication is based … are public in the same way as court records are public.”
The Star is asking the Court to find that requiring the use of freedom of information legislation to access material held by tribunals is unconstitutional.
The Star’s application should be of significant concern to employers. Applications before the Human Rights Tribunal and the Labour Relations Board often contain allegations that, even if unproven, could harm an employer’s reputation in the community, hurt employee morale, and negatively affect business relationships. It is also common for human rights applications to allege wrongdoing by other employees (for example, supervisors) that could be embarrassing if made public.
Currently, information contained in tribunal records is not usually released to the public under freedom of information laws. If it is, individuals affected by any release of information will be informed before it occurs. However, if the Star’s application is successful, all of this information may be publicly accessible, and without notice to the people involved.
It is not clear at this point how quickly the Star’s application will proceed, and how the province will respond. We will pay close attention and give updates as new information develops.