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Shifting Balance Between Privacy and Openness in the Tribunal World of Justice

Public access to court proceedings is the normal practice in Court proceedings to the justice system (courts and tribunals) as it ensures justice is administered in a fair manner, in accordance with the principle of freedom of expression, found in the Charter of Rights and Freedoms. However, until recently, openness and transparency did not extend to Ontario’s Tribunals, which make decisions on a wide range of matters

The tribunal system was initially set up with the idea that people could use it as an alternative to the court system to achieve faster, less expensive and easier resolutions. Tribunals, were part of the justice system but operated outside of the principles of openness and transparency.

This article highlights a recent decision of the Superior Court of Justice in Ontario leading case that initiated significant change to the operation of Tribunals in Ontario. We will highlight some emerging issues facing Tribunals in finding the balance between protecting privacy while being accountable to foundational principles of openness and transparency.

Tensions between privacy and openness

In this age of the Internet, the publication of justice system information can lead to serious privacy consequences. As a result, tensions arise between two competing justice values – an open and accessible justice system and the right to privacy.

Questions arise about how to protect the personal information of individuals involved in court and tribunal processes while continuing to foster openness and accountability. It is a difficult balance to reach.

Rules for privacy differ between courts and tribunals

Seeking justice through the criminal court system can be a gruelling, intimidating and de-humanizing process for individuals. This is evidenced through media coverage of high profile cases where credibility goes on trial, private lives go under the microscope and the victims forced to re-live the trauma every day in the courtroom.

The Province’s various administrative tribunals make decisions on a range of issues from landlord and tenant disputes to human rights complaints. Documents and records have in the past typically not been readily accessible. Up until May 2019 the rules of disclosure in the formal court system as well as the principles of transparency and openness were not considered a part of the tribunal system. Access to administrative tribunal records and proceedings was inconsistent — 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).

What changed?

In April 2018, the Ontario Superior Court of Justice released its decision in Toronto Star v. AG Ontario, finding that the application of the Freedom of Information and Protection of Privacy Act to administrative tribunals violates the principle of freedom of expression embedded in section 2(b) of the Charter of Rights and Freedoms. The court agreed with the Star that tribunals needed to implement changes to be more open and accessible, transparent and rigorous – necessary to maintain the integrity of the system. Previously, there had been a good deal of secrecy, misinformation, selective disclosure of 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 decision in this case significantly transformed how tribunals operate. The outcome had broad ramifications for all judicial tribunals. The court clearly confirmed that tribunals are not simply a function of government, but have adjudicative powers like courts and need to operate openly, like courts.

Bringing Openness into the World of Tribunals

As a response to the decision in the Star case, in May 2019, Tribunals Ontario released a new policy confirming they are now guided by the open court principle and committed to transparency, accountability and accessibility in decision-making and operations.

The open court principle allows the public and media access to tribunal proceedings. It ensures effectiveness of the evidentiary process, encourages fair and transparent decision-making, promotes the integrity of the justice system and informs the public about its operation.

Openness and access to information is fundamental to gaining public confidence in the justice system and in building public understanding of how the administration of justice is maintained.

New challenges for Tribunals

Tribunals now must refine the balance between openness and the privacy concerns of vulnerable people who share sensitive personal information during proceedings. Most decisions and orders of Tribunals Ontario tribunals are available online without charge on CanLII and in some cases on boards’ or tribunals’ websites.

Privacy should never defeat the foundational principles of openness and accountability in tribunal processes, however, where individuals are involved in tribunal processes, their privacy deserves respect and protection.

Maintaining consistency in the balance of privacy and openness

The Canadian Judicial Council plays a leadership role in initiating discussions and debate about the development of electronic access policies. The Council has stipulated that it is important to encourage, to the extent possible, a consistent approach to the use of personal information by courts and administrative tribunals in their decisions and the posting of those decisions on websites.

The CJC’s model protocol on publication of personal information in court decisions, published in 2005, places the onus on judges, not publishers, to limit disclosure of personal information. It provides specific recommendations for protecting the privacy of personal information, characterized as “omitting personal data identifiers which by their very nature are fundamental to an individual’s right to privacy.” It identifies certain information, such as name and date of birth, social insurance number and financial account numbers, as being worthy of protection in written decisions because of the risks associated with disclosing them:

Concluding remarks:

  1. Openness and transparency are fundamental principles of our justice systems – courts and tribunals must respect these principles in their operations.
  2. Withholding public access to records or information for proceedings is unconstitutional and no longer allowed
  3. Privacy and protection of personal information are secondary to the principles of accessibility and transparency
  4. Development of specific electronic policies and promoting wide-spread adoption of them is an important step towards maintaining consistency in the balance of privacy and openness in the justice system.

Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btlegal.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.

Video Cameras in the Ontario Workplace

Increases in affordability and availability have made video cameras ubiquitous in both public and private places across Ontario. More so than ever before employers are installing cameras in the workplace.

Video camera surveillance raises interesting employment law issues for both employees and employers. While video cameras are common place in retail stores, banks, manufacturing facilities and casinos, what about in an office environment? Or in a break room? Does an employer have to tell its employees about surveillance cameras or can they be hidden?

Right to privacy at work

The Ontario Courts have commented that the Ontario legislature “has not gone very far in safeguarding an employee’s right to privacy in the workplace.” In Ontario, there is no specific privacy legislation aimed at the private sector. Neither the Employment Standards Act nor the Occupational Health and Safety Act make any mention of an employer’s obligation or the employee’s rights regarding privacy. Only Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”) applies.

PIPEDA requires a genuine purpose for video camera surveillance in the workplace. Or, in other words, a purpose that a “reasonable person would consider appropriate in the circumstances.” The test set out by the Office of the Privacy Commissioner of Canada (the “OPCC”) to determine the appropriateness for video camera monitoring is as follows:

  1. Is the camera demonstrably necessary to meet a specific need?
  2. Is it likely to be effective in meeting that need?
  3. Is the loss of privacy proportional to the benefit gained?
  4. Is there a less privacy-invasive way of achieving the same end?

Although its aimed at public institutions, the OPCC publishes some very instructive examples:

  • “A minor offence such as littering would, in general, not be considered a substantial or pressing problem. It would, therefore, not meet the required criteria to justify the use of video surveillance.”
  • “A dimly lit area of a public school has been the site of ongoing vandalism and violence. Before considering video surveillance, the school should evaluate the effectiveness of less intrusive alternatives such as increased lighting and foot patrols.”
  • “A video camera that monitors a parking lot indirectly captures information about adjacent properties. To limit the amount of personal information collected by it, the camera is set up to automatically avoid or black out any area or property adjacent to the parking lot.”

Legitimate purpose can be to ensure the safety and security of customers and employees, reduce or deter illegal conduct, or to reduce the risk of legal liability.

Employers must balance the need for video surveillance vs employees’ right to privacy

For purposes of deterring theft, vandalism, assault and sexual harassment, surveillance cameras may be permitted. In grocery stores, banks, manufactories, retail or restaurants, where cash and inventory are stored, there is a reasonable purpose for having cameras. Further, for employees who work in public facing places, such as at reception of a business, there may be no reasonable expectation of privacy in the first place.

On the other hand, in private locations such as washrooms and lunch or break areas it is reasonable for both employees and customers to expect privacy.

In the case of Colwell v. Cornerstone Properties Inc., Ms. Colwell sued for constructive dismissal after her employer installed a secret hidden camera in her private office. The Court did not expressly address whether video cameras are permitted in the office, but instead found that the placement of the hidden cameras, and subsequent lies, violated the implied contractual term of employment, that “each party would treat the other in good faith and fairly”, and poisoned the work environment. Subsequently the Courts have stated that “the placement of a video camera in an employee’s office without his or her knowledge is a serious and intrusive violation of the employee’s privacy.”

Video cameras may be permitted in an office if employees are informed

In a decision from February, 2018, Rouse v. Drake & Drake, Justice Conlon dealt with a wrongful dismissal action of a hygienist from a Dental Office. In this case, Ms. Rouse made her dislike for the surveillance cameras clear prior to, during, and after their installation. She was found by the Court to have “deliberately manipulated the security cameras.” The Court considered her intentional conduct, in rendering the surveillance camera in her office ineffective, as one of the factors that could justify a termination for cause. Ultimately, however, the Court decided for other reasons that there was not cause for her termination.

Audio recording is not permitted

Did you know that Amazon’s Echo can be set up to allow listening in on conversations in other rooms. Amazon calls this feature “drop in”. Given how accessible devices like these are, what is an employees reasonable expectation of privacy, when it comes to their conversations around the office?

In terms of audio recording, employers could find themselves criminally liable under section 184 of the Criminal Code if they are intercepting private conversations unless one or more of the participants consents. Practically speaking this means that conversations between employees cannot be recorded.

Take away

Video cameras can be used in Ontario Workplaces to record video, but not audio, so long as there is a genuine purpose for doing so and employees are informed. Employers should publish and circulate to their employees a video surveillance policy containing guidelines and procedures for the collection, use, and disclosure of the information obtained by video surveillance and publish signage to remove any reasonable expectation of privacy.

In addition, employers should take measures to ensure the recorded images are stored securely, with limited access, and regularly destroyed or deleted.


Contact Justin W. Anisman

Contact Justin W. Anisman, the author of this blog, about any employment law related questions or issues you may be facing. Call 416-304-7005 or email him at janisman@btzlaw.ca.

Justin W. Anisman is an Employment Lawyer at the Toronto law firm Brauti Thorning Zibarras LLP. Justin advises both companies and individuals in all aspects of employment law including wrongful dismissal, human rights and discrimination.


The publications made on this website are provided and intended for general introductory information purposes only. They do not constitute legal or other professional advice, or an opinion of any kind. Speak to a professional before making decisions about your own particular circumstances.