Transcript DeMarco 2016 SOAR WORKSHOP #7- What`s Public What`s Notx

WORKSHOP #7: What's Public, What's Not
Access to a Hearing and its Record
SOAR's 28th Annual Conference 2016
SOARing Ahead: Mindful, Proportional, Proactive
November 3, 2016
Jerry V. DeMarco
Associate Chair, Conservation Review Board
Associate Chair, Environmental Review Tribunal
Alternate Executive Chair, Environment and Land Tribunals Ontario
Environment and Land Tribunals Ontario
ERT Rules 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: FIPPA and s. 9 of SPPA
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Examples of Confidentiality
Requests at the ERT
• personal health information
• financial information
• new research awaiting publication
• location of endangered species
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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 wellinformed 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
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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
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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
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