Tribunals disclosing adjudicative records – new law and new concerns records

In July 2019, the Tribunal Adjudicative Records Act, 2019 (“TARA”) became effective legislation. While it is a very brief statute, with only 8 sections, it has the potential for big impact.

Let me explain why.

Essentially TARA makes available to the public “adjudicative records” that specified administrative tribunals have in their possession for matters that were filed after July 1, 2019. For those of us who work in the labour and employment law field, this includes the Human Rights Tribunal of Ontario, the Ontario Labour Relations Board, and the Pay Equity Hearings Tribunal.

On its face, this does not seem noteworthy because the public could always request tribunal records and pleadings under freedom of information legislation. However, “adjudicative records” is defined in TARA and means more than the administrative or procedural documentation that is generated by a tribunal, such as notices of hearings, orders, decisions and hearing schedules. It also includes applications or other documents by which a proceeding before the tribunal is commenced, as well as:

• written submissions filed with the tribunal; and
• documents that have been admitted as evidence at a hearing of a tribunal or otherwise related upon by a tribunal in making a decision or order.

This is significant.

Think about all the personal or confidential information that can be contained in or attached to written submissions (or pleadings) that are filed with a tribunal. Think about all the personal and confidential information that is admitted as evidence during a hearing. This can include disciplinary and discharge documentation, performance evaluations and appraisals, medical documentation, investigation reports, financial information, texts and pictures. All of this can now be requested, and produced, to a member of the public or the media.

Some information, such as mediation information, adjudicator’s notes, and employee names in relation to union certifications and termination of union certification, are exempt from disclosure. TARA also sets out a mechanism about how a party, a person affected, or the tribunal itself can request a confidentiality orders to prevent disclosure and how the tribunal decides it.

TAKE AWAYS

Exercise caution when filing submissions with a tribunal and revisit whether documentation needs to be attached to them. If you are concerned, consider filing a request for a confidentiality order to prevent its disclosure to the public or the media.