The Financial Services Tribunal is an adjudicative tribunal operating within the Canadian justice system and subject to the Statutory Powers Procedure Act. It is required to conduct its proceedings openly and transparently, unless exceptional circumstances justify closing those proceedings. The Tribunal normally provides public access to its hearings and to the documents filed in connection with those hearings. Because the Tribunal is committed to open and transparent justice, it is only in rare cases that it holds private hearings and keeps documentary evidence off the public record. A party who seeks such exceptional treatment must persuade the Tribunal that it is required and falls within our Rules.
The Tribunal is also subject to the Freedom of Information and Protection of Privacy Act (“FIPPA”). This Act requires the Tribunal to provide public access to its files, subject to certain limitations and procedural requirements set out in that Act. This means that under FIPPA, material provided to the Tribunal outside the hearing (including Requests for Hearing and Notices of Appeal, as well as other material provided prior to and after the hearing) may also be available to the public. FIPPA plays two roles; it ensures public access to information, but it also protects personal information from disclosure in certain circumstances which may apply in individual cases. However, parties who are involved in Tribunal proceedings and who have privacy concerns should not rely on FIPPA to protect their information from public scrutiny; they should instead seek orders from the Tribunal where it is appropriate to do so.
The Tribunal’s Rules of Practice and Procedure outline the procedures that should be followed by parties who believe their situations fall within the narrow category of cases where some or all of the documentary evidence should be kept confidential (through an order sometimes called a “sealing order”), or where the hearing should be private. If you believe your case raises special privacy concerns, you should review Rules 10 and 11 (dealing with the Public Record and Confidential Documents) and Rule 23 (dealing with Hearings in the Absence of the Public). You should raise your privacy concerns at the first available opportunity, which is usually at the Pre-Hearing Conference. If you believe your privacy concerns need to be dealt with before the Pre-Hearing Conference, please contact the Registrar. In order to understand how the Tribunal applies these Rules, you may find it useful to review recent Tribunal decisions considering the application of Rules 10, 11 and 23. For your convenience, we have provided a direct link to the CanLII website where Tribunal decisions may be found.
The parties themselves are their own first line of defence in protecting their own privacy. Parties should be careful to protect their own personal information, and should also take care to protect the privacy of uninvolved third parties. Material which is sensitive should only be filed if it is material to the case. Examples of potentially confidential material include documents which include the names, salary information, banking information and SIN numbers of employees or former employees who may or may not be parties. The Tribunal encourages parties to remove or redact such information from documents where it is not material to the issues in the case.
Persons involved in proceedings before the Tribunal should also understand that Tribunal decisions are normally posted publicly on the internet, in order to make the public aware of the Tribunal’s evolving jurisprudence, and to further the public interest in an open and transparent justice system. These decisions normally name the parties, identify relevant witnesses by name, and discuss the evidence in some detail. The Tribunal is sensitive to privacy issues, and makes every effort to minimize the extent to which it is included in decisions where it is not relevant to the decision. The Tribunal endeavours to exclude from its decisions the type of identifying information that may place people at risk of identity theft and other similar hazards. Parties need to be aware, however, that the Tribunal’s primary responsibility is to ensure that its decisions include enough information to make the reasons for those decisions clear to parties not involved in the case. That may well require including information that the parties would prefer to keep private.