Access to Records Policy

1. COMMITMENT TO OPENNESS

The Financial and Consumer Services Tribunal is guided by the open court principle, which encourages fair, transparent, and accountable decision-making and promotes the integrity of the justice system. The open court principle assumes that openness and transparency enhance the public’s understanding of, and confidence in, the administrative justice system.

Persons involved in proceedings before the Tribunal should 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. Sensitive personal information may be included in documents provided as part of a proceeding.

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 people not involved in the case. That may well require including information that the parties would prefer to keep private.

2. ACCESS TO HEARINGS

2.1 General Rule

Hearings of the Financial and Consumer Services Tribunal are open and accessible to the public and media, with certain exceptions discussed below.

It is the responsibility of those who communicate any information about a proceeding to respect any publication bans, confidentiality orders, or other limits imposed by the Tribunal. A hearing panel may, in exceptional circumstances, impose limits on the attendance of media and the public to prevent disruption or interference with a witness’ testimony.

2.2 Case Management Conferences and Settlement Hearings

Case management conferences and settlement hearings are not open to the public and media.

2.3 Electronic Devices

For the purpose of note-taking or electronic communication, laptop computers, tablets, smart phones and similar devices may generally be used in hearing provided they do not cause any disturbance to the proceedings. This applies to members of the media, lawyers, and members of the public.

All devices must be set on silent mode and never used for voice communication.

 2.4 Recording and Photographing in the Hearing Room Prohibited

Members of the media and the public are prohibited from recording, by any means, portions or the entirety of a hearing. Members of the media and the public are also prohibited from taking photographs in the hearing room.

3. ACCESS TO HEARING FILES

3.1 Availability of Hearing Files

As a general rule, the adjudicative records in hearing files are available to the public and media on request. However, on request of a party, the Tribunal may order that certain material be sealed or redacted to protect confidentiality of highly sensitive personal or corporate information. Adjudicative records include the following:

• Pleadings, including a Notice of Appeal or Review, a Statement of Allegations, a Notice of Application, a Notice of Intent, and a Notice of Motion,
• Notices of hearing,
• Written submissions,
• Documentary evidence that was admitted into evidence at the hearing,
• Recordings and transcripts of the proceedings, if any,
• Orders and decisions, and
• Schedules of hearings and tribunal dockets.

The Tribunal’s decisions and orders are available at no cost on its website and on the online case law database, CanLII.

3.2 Excluded Documents

Specific statutory, regulatory or rules-based restrictions on access may limit access to adjudicative records. In addition, if a proceeding or a portion thereof is closed to the public, any documents related to closed portions of proceedings are not part of the publicly available hearing file.

Personal notes of Tribunal Members or Tribunal Staff, legal opinions, research memos, draft decisions, draft orders and communications related to draft decision/orders are not adjudicative records.

In addition, documents filed with respect to the approval of a settlement shall not be made public prior to the approval of a Settlement Agreement by the Tribunal. If the settlement is approved, the documents become available to the public, subject to any order of the Tribunal limiting access to the documents or information contained therein. If the settlement is not approved, the documents are not made public.

Available adjudicative records may be retrieved and provided where sufficient identifying information is supplied by the requester. Requests must identify the specific record and related proceeding, and staff cannot conduct research on behalf of requesters. Staff is not able to extract, compile or aggregate data from hearing files. Tribunal records are subject to archiving and retention schedules and may not be retrievable.

3.3 Viewing a Hearing File

It is possible to request to view a hearing file in the Tribunal offices. Only adjudicative records as described in this policy will be made available for viewing. There is no fee charged if the individual viewing the file makes copies using his or her own portable copier, digital camera or hand-held scanning device. However, in that case, no documents secured or fastened on the file may be removed from the file, nor can the spiral or other binding be removed and then rebound. Documents may be viewed in a designated area and are not to be removed from the premises under any circumstances.

3.4 How to Make a Request

To request adjudicative documents or to request to view adjudicative records, complete the Request for Documents form and send it to the Registrar of the Tribunal by one of the means indicated on the form.

3.5 Timeframes for Public Access

Tribunal staff work to provide access to hearing files and adjudicative documents as quickly and efficiently as possible. However, the time it takes to provide access can be affected by various factors, including whether documents are required for an active proceeding, whether they have been sufficiently identified so they may be retrieved, whether they are stored on-site and available, as well as other staff and member responsibilities and priorities require it.

4. REQUEST A CONFIDENTIALITY ORDER

4.1 How to Make a Request

A person with a concern about privacy can request a confidentiality order from the Tribunal to restrict access to the hearing and adjudicative records. Examples of what can be sought to protect privacy include:

• A hearing be closed to the public and media (closed hearing),
• Access to all or part of the documents filed with the Tribunal be restricted (sealing order),
• Publication of certain information be prohibited (publication ban), or
• An individual’s name or other identifying information in the Tribunal’s order or decision be anonymized (anonymization order).

The person seeking a confidentiality order must file a Notice of Motion (Form 5) and supporting Affidavit (Form 9). These documents should indicate:

a) The reasons for the request, including the nature and extent of the specific harm that might result if the confidentiality order is not granted,

b) Any request that the Tribunal consider the motion before the document is served on the parties,

c) Any request that the Tribunal direct only an abridged version of the document be served before the motion is heard and decided, and

d) Any objection to placing an abridged version of the document on the public record and the reasons for such an objection.

4.2 Motion is Open to Public and Media

When a motion for confidentiality is filed, it will be indicated on the Scheduled Hearings page. The hearing of the motion will be open to the public and media. Media representatives interested in a particular proceeding are encouraged to follow it closely.

Members of the media have standing to be heard and to raise objections when a party requests the imposition of limits on the open court principle.

4.3 Order of the Tribunal

The Tribunal will only exercise its discretion to grant a confidentiality order, where the evidence establishes that:

1. openness poses a serious risk to an important public interest,

2. the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk, and

3. as a matter of proportionality, the benefits of the order outweigh its negative effects.

5. ACCESS TO INSTITUTIONAL RECORDS

Institutional records do not relate to hearing files. Requests for institutional records may be subject to access under the Right to Information and Protection of Privacy Act (RTIPPA). RTIPPA sets out procedures for making requests and outlines limits to the right of access.

You can submit an access request under the Right to Information and Protection of Privacy Act by completing this form and sending it to the Registrar of the Tribunal, whose contact information is detailed at the end of this Policy.

6. FEES

Fees will typically not be charged where the documents or records are provided in electronic format. The fee for hard copies is $0.50 per page.

7. QUESTIONS

If you have questions, please contact the Registrar of the Tribunal by the following methods:

Email: registrar-greffier@tribunalnb.ca

Telephone: 506-238-1872 or toll-free 855-267-1454

RESPONSIBILITY

The Tribunal Chair is responsible for the administration of this policy.

AUTHORITY

Financial and Consumer Services Commission Act

Right to Information and Protection of Privacy Act

RESCINDS

n/a

HISTORY

Release 001 - Approved August 3, 2022. This document is the original issue.

APPROVAL DATE

August 3, 2022

REVIEW CYCLE

This Policy will be reviewed annually or as needed to ensure it is current and effective.