On the first day of arguments in the Toronto Star’s legal challenge to make Ontario’s quasi-judicial tribunals more open and accessible, the courtroom itself served as a useful metaphor.

The hearing before Ontario’s Superior Court was theoretically open to the public, but it was scheduled for a room in Osgoode Hall that did not even have enough seats for all the lawyers present, let alone members of the public. About a dozen people hoping to observe the proceedings crowded just outside the courtroom’s doors.

“I did advocate for you,” Justice Edward Morgan told the assembled lawyers, who had informed court staff ahead of time that the room would not be big enough. “Apparently space is at a premium.”

Just then a court official told Morgan they had found another courtroom. The only problem was that it was a few hundred metres up the street, at 393 University Ave.

Morgan acknowledged the inconvenience for everyone, but decided it was necessary.

By 11 a.m. — after moving one more time and wheeling in extra chairs from adjacent courtrooms — all the lawyers and everyone else who wished to attend had a seat.

The Star’s lawyers, led by Paul Schabas, proceeded to make arguments centred on the idea that while the province’s various administrative tribunals are theoretically open to the public, they must also be practically so.

But nothing Schabas said made his point as clearly as the morning’s unusual hunt for an appropriate room. The court could not fulfil its requirement to be open and accessible if it didn’t make actual space for the public. Schabas, without making specific reference to the morning’s events, argued the same principle of openness applies to the province’s tribunals.

“So the public can know what is happening, when it’s happening and why it’s happening,” he said.

Read more:

Editorial: End this needless secrecy

The Star launched its legal challenge against the province last year in an effort to gain faster and fuller access to documents the newspaper argues are a matter of public interest. While reporters can typically attend and report on what happens at the tribunals’ public hearings, the process of getting documents related to those same hearings after they occur is inconsistent, onerous and often significantly delayed, the Star has argued.

Unlike courts, from which documents can be obtained by any member of the public upon request, some of Ontario’s tribunals — which include the Human Rights Tribunal, the Landlord and Tenant Board, and a dozen other decision-making bodies — require formal freedom of information requests to access documents related to a case.

The Star is asking the court to declare that freedom of information laws should not be used by tribunals to withhold information that should be readily disclosed.

Tribunals should operate as openly as courts because they make decisions that were once the domain of courts, Schabas said. They were created to relieve the burden on the court system, but they still act as judicial bodies and the open courts principle still applies to them. “Tribunals are doing what courts did or what courts would have to do if the legislature hadn’t set them up,” he said.

Some tribunals already act in this fashion, which, Schabas said, proves they all could and should. Currently some tribunals post hearing decisions on their websites, while others keep even their schedules secret. “It’s a mess,” Schabas said.

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The province will make its oral arguments on Thursday. In documents already filed with the court, it has argued that administrative tribunals are not courts and should not be subject to the same legal principles.

“(The Star) ignores the critical legal, institutional and practical differences between courts and tribunals that make the open courts principle an inappropriate foundation for access to tribunal files,” reads the province’s factum. It argues that freedom of information laws are necessary to protect privacy rights.