Balancing Public Access and Confidentiality in Environmental Hearings

1. WORKSHOP #7:What's Public, What's NotAccess to a Hearing and its RecordSOAR's28th Annual Conference 2016 SOARingAhead: Mindful, Proportional, ProactiveNovember 3, 2016 Jerry V. DeMarco Associate Chair, Conservation Review Board Associate Chair, Environmental Review Tribunal Alternate Executive Chair, Environment and Land Tribunals Ontario

2. ERTRules of Practice 3. …“public record” includes an application or Notice of Appeal, the decision appealed or referred to the Tribunal, any Notice, all documents filed with the Tribunal, any correspondence to and from the Tribunal, transcripts, orders of the Tribunal and the Tribunal’s final decision, recommendation or report, but does not include those documents that are marked confidential by order of the Tribunal under Rule 211 or members’ notes or members’ recordings of Tribunal proceedings 207. A Hearing shall be open to the public unless ordered otherwise by the Tribunal in accordance with Rule 209. 210. All persons are entitled to have reasonable access to the Tribunal's public record unless the Tribunal makes an order under Rule 211. 211. At the request of a Party or on its own initiative, the Tribunal may order all or part of a document to be marked "confidential", where appropriate, in which case it shall not form part of the public record.. See also: FIPPAand s. 9 of SPPA

3. Examples of Confidentiality Requests at the ERT personal health information financial information new research awaiting publication location of endangered species

4. ERT Context: Principles • “Public notification and participation are important aspects of sound environmental decision-making and administrative law proceedings affecting the public interest. Fostering public involvement not only assists those affected by Tribunal proceedings, but also leads to well-informed decisions. This, in turn, helps the Tribunal better accomplish the public interest in environmental protection set out in the EPA's purpose section. [These rules] also help the Tribunal fulfill its objectives relating to just determinations (see section 2 of the SPPA and Rule 4), fairness, openness, accessibility and public participation (see Rule 1).” • Detox Environmental Ltd. v. Ontario (Ministry of the Environment), [2009] O.E.R.T.D. No. 6 at para. 22

5. ERT Context: Public Interest • “…even if many of the criteria considered by courts and tribunals in assessing requests for status [to intervene] are similar, the threshold for granting status is often lower for tribunals. This is especially true for tribunals, such as the Environmental Review Tribunal, which have a public interest mandate that may be broader than the lis between the two main parties.” • Stericycle Inc. v. Ontario (Ministry of Environment), [2006] O.E.R.T.D. No. 21 at para. 27

6. ERT Context: Balance • “At the Hearing, the Tribunal expressed a concern to the Parties that public access to Tribunal proceedings is an important objective that needs to be balanced with the confidentiality objectives raised by the Appellants' witnesses. As was noted in Starnino Holdings Ltd. v. Ontario (Ministry of the Environment), [2007] O.E.R.T.D. No. 68 at para. 142: • There is a public interest served by having the documents introduced in a public hearing being made available to the public, even if nothing turns on some of them in the end. This allows a tribunal's decisions to be properly scrutinized. • Consequently, the Tribunal asked the Parties to fashion a more tailored approach to the confidentiality issue such that both objectives (public access and avoidance of uncontrolled advance publication) could be met simultaneously.” • Erickson v. Ontario (Ministry of the Environment), [2011] O.E.R.T.D. No. 7 at paras. 11-12