Ontario’s quasi-judicial tribunals are part of the executive branch of government and “fundamentally different” from courts, so the open courts principle should not apply to them, lawyers for the province argued in Superior Court on Thursday.

“The open courts principle emerges from the court’s role as a separate branch of government,” said Daniel Guttman, representing the Attorney General of Ontario. Courts, being independent of government, are not democratically accountable, he said. Their openness ensures accountability. “Tribunals, by contrast, are subject to government oversight.”

Ontario is defending itself against a legal challenge from the Toronto Star calling on the court to require the province’s various administrative tribunals — which make decisions on everything from landlord and tenant disputes to human rights complaints — to provide easier and more complete access to records and documents related to their public hearings.

Currently, while tribunal hearings are usually open to the public, some tribunals require members of the public, including the media, to file formal freedom of information requests for access to documents related to those hearings. This, the Star argues, creates an unreasonable barrier to information to which the public is constitutionally entitled, because the freedom of information process is cumbersome and often leads to heavily redacted documents.

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Ontario says tribunals should not be as open as courts

The debate playing out in front of Justice Edward Morgan is theoretical and rooted in dense legal arguments, but the question at hand is relatively straightforward: should tribunals be required to disclose documents as readily as courts do?

The Star says they should, because decisions made by tribunals were once within the jurisdiction of courts and the fundamental principle of openness should apply to them. Specifically, the Star is asking the court to declare the practice by some tribunals of requiring formal freedom of information requests for access to documents as unconstitutional.

The province, meanwhile, says tribunals must balance openness with privacy rights. Letting each tribunal make its own decisions on how it discloses information — in some cases by using the freedom of information process to restrict what is made public — is the best way to do that, it argues.

Guttman said the tribunals vary widely in terms of their mandates and the kinds of decisions they make, and the current system allows each to exercise its own expertise in deciding what information should be disclosed.

The Star’s lawyer, Paul Schabas, argued that freedom of information laws are used to give the public access to information that is presumptively not disclosed. But the information some tribunals are trying to keep secret should be presumptively open. So requiring a freedom of information request to obtain that information “puts the burden on the person trying to assert their constitutional right.” He said the process “significantly impairs” journalists’ ability to do their jobs.

Guttman said there is no evidence the Star was ever impeded in reporting on cases at any tribunal.

Iris Fischer, another lawyer representing the Star, addressed this point on Wednesday, saying: “We don’t know what we don’t know.”

The province also argued that providing more complete disclosure of tribunal documents could actually limit access to justice by discouraging some people from bringing complaints forward.

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Guttman also argued that the court should simply dismiss the Star’s case because it has not exhausted the legal remedies available, such as appealing to the information and privacy commissioner or seeking judicial review of a tribunal decision in Federal Court.

The province will continue its arguments on Friday. There is no timeline for when Morgan will make his decision.