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ADMINISTRATIVE JUSTICE AND TRIBUNAL PROCEEDINGS
1.1 General Characteristics of Administrative Proceedings
1.1.3 An Accessible, Informal, Effective Procedure
220.127.116.11 Publicity and In Camera Proceedings
The principle that the hearings of a quasi-judicial tribunal should be public has been upheld by the Federal Court, which has recognized that an administrative tribunal has complete discretion to refuse to hold in-camera hearings where the applicant has no valid reason to request them.242 Citation 242
A number of provisions provide guidance for administrative tribunals in their decision as to whether to proceed in camera. The legislature prescribes tests for the holding of in-camera proceedings. Tribunals must comply with the law and, in interpreting these tests, not forget that public hearings should be the rule. Thus, the Quebec courts have decided that some in-camera orders were not justified by the public interest and prevented interested parties from having their testimony heard.243 Citation 243
On the other hand, where the Act is silent, since administrative tribunals are "master of their own proceedings", they have discretionary power to decide whether proceedings will be held in camera.244 Citation 244 However, they must not forget that public hearings are the rule and that proceedings should be held in camera only in exceptional cases. The Ontario Court of Appeal has held that where an act is silent, a tribunal must sit in public unless there is good reason to hold the hearing in camera.245 Citation 245 Proceedings should be held in camera only when the public interest so requires.246 Citation 246
The principle that hearings should be held in public is designed to ensure that the activities of administrative tribunals are transparent. The Federal Court reiterated this principle on the occasion of an application by certain media companies to have hearings concerning an application for review of the grounds for detaining persons claiming refugee status held in public, contrary to what the adjudicator had decided. The Court quashed the in-camera orders:
I am satisfied that these tests in the case at bar have been met and it is not at all unreasonable to extend to proceedings of such decision-makers the application of this principle of public accessibility. After all, statutory tribunals exercising judicial or quasi-judicial functions involving adversarial-type processes which result in decisions affecting rights truly constitute part of the "administration of justice". The legitimacy of such tribunals' authority requires that confidence in their integrity and understanding of their operations be maintained, and this can be effected only if their proceedings are open to the public.247 Citation 247
When the charters came into effect, the principle of public hearings gained increased protection. In Quebec, s. 23 of the Charter of Human Rights and Freedoms provides that hearings shall be public, although "[t]he tribunal may decide to sit in camera, however, in the interest of morality or public order."
As the Court of Appeal has noted, public hearings are the rule; this gives the public and the media the right to request copies of the tribunal record unless an order is made to the contrary.248 Citation 248
The public nature of justice and incidentally also of administrative justice is further emphasized by s. 2(b) of the Canadian Charter Section 2(b) of the Canadian Charter:
2. [Fundamental freedoms] Everyone has the following fundamental freedoms
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.
According to the case law, the development of the right of access to tribunals requires that the principle of public hearings receive the same protection as freedom of expression.249 Citation 249 An order that proceedings be held in camera constitutes a restriction on the freedom of the media. The courts must strive to balance several rights that conflict with one another such as the right to a fair hearing, the right to privacy, the right to freedom of expression, freedom of the press and protection of the administration of justice.250 Citation 250
The courts have rarely had to render decisions on this issue in administrative law; such disputes are much more common in criminal law. Recently, the Superior Court had to decide whether the order for proceedings to be held in camera made by the committee of inquiry of the Conseil de la magistrature in its review of complaints filed against a judge violated s. 2(b) of the Canadian Charter and s. 23 of the Quebec Charter. The Court began by examining the reason given by the committee for ordering an in-camera hearing251 Citation 251 and considered whether the order was contrary to freedom of the press and the right to a public and impartial hearing. An in-camera order will be found to be necessary if it is designed to preserve public order and morality. In that case, these values were not at issue. Then the Court applied the test under s. 1 Section 1 of the Canadian Charter; it concluded that no evidence had been adduced concerning the possible disturbance of children or of any possible influence on them of making the discussions public. On the other hand, the public was aware of some of the complaints. According to the Court, the order violated the freedom of the press and was not justifiable: [Translation] "Complete exclusion of the public is a measure that greatly exceeds the violation of freedom of the press and the public hearings provided for in the charters in accordance with the tests imposed in Oakes and Edward Books and Art Ltd." 252 Citation 252
In addition to the in-camera problem, there is also the problem caused by publication and distribution bans. In Southam Inc. v. Lafrance,253 Citation 253 the Quebec Court of Appeal considered this issue. It found that publication and distribution bans were justifiable and necessary for reasons of public order, especially respect for the right to a fair and equitable trial and the right to one's reputation.
Our Act refers to in-camera proceedings only in cases where the board hears a case involving an allegation of sexual or other harassment (A. 114(2) Section 114(2) of the Act).254 Citation 254 At the request of the claimant, the chairperson may order in-camera hearings or ban any form of publication or dissemination of details concerning the harassment if he or she feels that the nature of the possible disclosure of personal or other matters is such that the interest of the claimant or the public takes precedence over the right to publish the information. Furthermore, the chairperson may, at the request of the claimant or the employer, exclude the claimant or the employer, their representatives and any witness or person who may testify from the hearing while oral testimony is being given. The chairperson may order that a copy of the sound recording of this testimony be given to the claimant or the employer who has been excluded from the hearing so that he or she may reply to it at the close of the hearing in the absence of the other excluded persons; they then have a right to disclosure of the recording of the testimony.
Other than in A. 114(2) Section 114(2) of the Act, our Act and Regulations do not discuss the public nature of hearings; therefore they should be open to the public, according to the case law. However the Benefit Manual, a Commission directive, limits this access to certain authorized persons, specifically the parties, their representatives, their witnesses, as well as anyone else who may be affected by the impugned decision.255 Citation 255 This restriction seems to be justified by the idea that the claimant should be in the best condition possible to present his or her case and the board should be able to carry out its duties properly and dispassionately after straightforward and expeditious proceedings. At least one Umpire seems to agree with the situation on the ground that the board is not a court that must be open to the public.256 Citation 256
The Manual (c. 13) states that the press may be admitted to hearings by informing the chairperson who then contacts the parties and permits admission unless there are strong objections to it. The Commission does not object to the presence of the media as an observer.