The Financial Services Tribunal ("FST" or "Tribunal") is an adjudicative tribunal operating within the Canadian justice system and subject to the Financial Services Tribunal Act and the Statutory Powers Procedure Act, along with its Rules of Practice and Procedure ("Rules"). In this regard, the FST 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 confidential and 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”) as well as the Tribunals Adjudicative Records Act ("TARA"). These Acts require the Tribunal to provide public access to its records, subject to certain limitations and procedural requirements set out in the legislation. This means that under these Acts, material provided to the Tribunal outside the hearing (including Requests for Hearing and Notices of Appeal etc., as well as other material provided prior to and after the hearing) may also be available to the public. These Acts play two important roles; they ensure public access to adjudicative information, but they also provide protection for personal/confidential information from disclosure in certain circumstances which may apply in individual cases and which may be invoked by the parties to proceedings who have privacy concerns by seeking Tribunal confidentiality orders under our Rules.
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.
If the Tribunal receives a request governed by FIPPA or TARA for disclosure of its records in relation to an ongoing proceeding, the Registrar will contact the parties to the proceeding. However if the proceeding to which any such request relates is closed the parties will not be contacted.
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.