The Open Court Principle and Confidentiality Orders
LTB hearings are generally open to the public and LTB orders typically include the names of parties, their representatives and witnesses, and the address of the rental unit. Additionally, information submitted by parties including during written hearings, may generally be viewed by the public, unless an LTB adjudicator, known as a Member, decides it is appropriate to restrict public access. This includes adjudicative records as discussed below.
The presumption that LTB hearings and adjudicative records are open to the public is part of the open court principle and is tied to freedom of expression under s. 2(b) of the Charter of Rights and Freedoms (See Toronto Star v. AG Ontario, 2018 ONSC 2586).
According to the open court principle, openness and transparency enhance the public's understanding of, and confidence in, the administrative justice system. Therefore, LTB hearings and records relied on in adjudication should generally be available to the public.
Where a party believes they meet the requirements for the information in some or all of their order to not be publicly accessible they may request a confidentiality order. Confidentiality orders will only be granted in exceptional circumstances as required by the law and in accordance with the open court principle. Confidentiality orders will not be granted merely because someone desires privacy.
There are different types of confidentiality orders. Depending on the circumstances, multiple types of confidentiality orders may be sought and/or ordered at the same time.
For instance, orders excluding the public from an oral hearing do not restrict public access to the recording of the hearing, or documents referred to and admitted as evidence in that hearing, and do not limit the publication of information presented during the hearing or contained in case files. Therefore, in order to ensure the purpose and intent of closing the hearing to the public is upheld, parties may seek, or the LTB may, on its own motion, consider additional confidentiality orders beyond excluding the public from the hearing.
Parties to a proceeding at the LTB cannot be excluded from a hearing. Generally, parties to a proceeding also cannot be prevented from having access to materials another party relies upon at a hearing.
Requesting a confidentiality order
The types of confidentiality orders that can requested are:
an Anonymization Order/Redaction Order (An order anonymizing an individual's name or other identifying information, such as an address, from the public version of the LTB’s order and/or case file. This could include removing information or using initials);
a Sealing Order (An order restricting access by third parties to all or part of the adjudicative records in a proceeding, including the hearing recording, for the duration of the proceeding and, where appropriate, beyond); and,
a Publication Ban (An order restricting the publication of all or certain information anywhere including on the internet, in print, on the radio or via television broadcast, telecommunication, or other electronic means, for the duration of the proceeding, and where appropriate, beyond).
A request for a confidentiality order can be made by any party to the proceeding or a person who would be affected by the disclosure of the information contained in the adjudicative record.
Requests for confidentiality orders should be made in writing and filed with the LTB before the hearing or as soon as the need for the request arises. The party seeking a confidentiality order should provide a copy of their request to all other parties.
Parties seeking confidentiality orders should include with their request the reasons for the request. Regardless of the type of confidentiality order sought, there must be sufficient evidence to establish that a confidentiality order should be granted.
Requests for confidentiality orders made before or during a hearing will usually be heard as a preliminary or interim motion in the absence of the public. If an oral hearing is being held, the public will usually be excluded from that part of the hearing. The parties, their representatives, and any other interested person (such as any member of the media who is present) will be given an opportunity to make submissions.
In some circumstances, after receipt of a request for a confidentiality order, the LTB may grant a preliminary or interim confidentiality order to ensure preservation of a protected interest until the request can be fully heard.
Parties seeking confidentiality orders after the release of a LTB order should be aware that the LTB does not generally order information in an issued LTB order removed from the internet. Even in the exceptional circumstances where such an order is made, enforcement remains the responsibility of the party.
The LTB will not automatically grant a confidentiality order because it is consented to by the parties. The LTB has an independent obligation to consider whether and how the open courts principle may be restricted by applying the tests described below.
LTB’s General Approach to Requests for Confidentiality Orders
Confidentiality orders are granted on a case-by-case basis. In considering whether to grant a confidentiality order the LTB follows the Supreme Court of Canada’s guidance in Sherman Estate v. Donovan, 2021 SCC 25, regarding when the open courts principle may be overridden.
As set out in Rule 7.8 of the LTB’s Rule of Procedure a confidentiality order will only be granted by the LTB where the Member is satisfied that all three of the following criteria are met:
openness poses a serious risk to an important public interest;
the order is necessary to prevent this risk because reasonable alternative measures will not be effective; and,
the benefits of the order will outweigh its negative effects.
A Member will consider the specific type of confidentiality order requested by a party. However, the LTB must ensure that any confidentiality order impairs the public interest in open and accessible legal proceedings to the minimum extent possible while adequately protecting the important interest that would be harmed by public access to the information.
Because of the requirement that any confidentiality order must minimally impair the public interest in open and accessible legal proceedings, an order sealing public access to an entire document or set of documents will generally be denied if specific redactions to the document or documents would adequately protect the important interest that would be harmed by public access to the information.
When determining whether to impose a confidentiality order, Members may consider a number of factors, including, but not limited to:
the specific facts and evidence of the circumstances submitted by the parties;
the public interests that may be affected by an order;
the scope of the order that may be required, including any conditions;
whether the request is based on something more than a mere desire for privacy;
whether the disclosure of certain information would cause harm to public security or to the government, including consideration of the disclosure of confidential economic information, information concerning issues of national security or information concerning on-going police investigations;
the likelihood that the person will experience the type and gravity of harm that they say they will if intimate details of their life, including, financial and/or health information, were made public;
whether the case involves any details relating to offences of sexual assault, harassment, child exploitation or any similar offences such that there exists a possibility that the identity of an alleged victim or a protected witness might be disclosed; and
whether a witness' testimony would be compromised if not given in a closed setting.
Examples where the LTB applied the test and criteria set out by the Supreme Court and did not grant a confidentiality order include: bcIMC Realty Corporation c/o QuadReal Residential Properties G.P. Inc. v Belanskaya, 2025 ONLTB 68397; TORONTO COMMUNITY HOUSING CORP v Bilska, 2024 ONLTB 63632; Fadaiefard v Geller, 2023 ONLTB 72451.
Confidentiality orders are not required with respect to materials that do not form part of the adjudication process. If a party is concerned about information contained in a document they wish to rely upon, but the sensitive information is not relevant or material to the issues in dispute, a party may redact the non-relevant and immaterial information before the document is filed with the LTB so that it does not form part of the adjudicative record.
Request to Close a Hearing (Order Excluding the Public)
When deciding whether to grant an order closing the hearing and excluding the public, the Member will apply Rule 7.7.1 of the LTB’s Rules of Procedure, which provides the LTB may, on its own initiative or at the request of a party or a participant in a proceeding, make an order closing some or all of a hearing to the public if:
matters involving public security may be disclosed; or
intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public.
If the Member decides to exclude the public, access to the hearing will be limited to the parties, their legal representatives, and any individuals necessary for the conduct of the proceeding such as interpreters, witnesses during their testimony only, and/or support persons. In some circumstances, in order to minimally impair the open court principle, the hearing may be closed only for the portion of the hearing during which sensitive information is disclosed.
Where a hearing is closed to the public, the Member will record the hearing separately from any other hearings in the hearing block.
Public Access to Adjudicative Records
Adjudicative records relating to LTB proceedings may be released to members of the public upon request in accordance with Tribunals Ontario’s Access to Records Policy unless there is specific applicable legislation restricting public access or where the LTB has issued a confidentiality order restricting access and/or publication.
Pursuant to s. 1(2) of the Tribunal Adjudicative Records Act 2019, S.O. 2019, c. 7, Sched. 60 (“TARA”), the following adjudicative records may be disclosed or viewed by the public:
An application or other document by which a proceeding before a tribunal is commenced;
A notice of a hearing before a tribunal;
A written submission filed with a tribunal in respect of a proceeding before the tribunal;
A document that has been admitted as evidence at a hearing of a tribunal or otherwise relied upon by a tribunal in making a decision or an order;
A transcript of oral evidence given at a hearing of a tribunal;
A decision or an order made by a tribunal and any reasons for the decision or order;
A docket or schedule of hearings of a tribunal;
A register of proceedings before a tribunal; and
Any other record that relates to a proceeding before a tribunal that is prescribed by the regulations made under TARA
The LTB also discloses hearing recordings to parties upon completion of the Request for Hearing Recording form and payment of the required fee.
Minors
Given the vulnerability of minors, where the LTB must specifically reference minors in an order, the LTB will often use the minor’s initials unless it determines it is not appropriate to do so in accordance with Rule 7.8.2 of the LTB’s Rules of Procedure. The LTB may also redact information and/or use initials to refer to other participants in a proceeding as necessary to protect the identity of children under age 18.
Where a hearing includes information that is protected by the Youth Criminal Justice Act, S.C. 2002, or Child Youth and Family Services Act, 2017, S.O. 2017, c. 14, including information relating to young persons who have been the subject of an investigation of any offence and young persons who have allegedly been a victim or a witness of such an offence, information contained in the case file will not be published or released without a court order.
Mediation
The LTB may require, or the parties may choose, to attend a mediation process including a Case Management Hearing (‘CMH’), to mediate some or all of the issues in dispute. Mediation at the LTB is a process where a Member or Dispute Resolution Officer (‘DRO’) will assist the parties in trying to reach a mutually acceptable resolution.
Communications made with the intention of settling ongoing proceedings are without prejudice and are subject to settlement privilege. Settlement privilege allows the parties to speak openly without fear that information they disclose will be used against them in litigation so as to encourage and prioritize settlement by enabling more fruitful negotiations (See Union Carbide Canada Inc. c. Bombardier Inc., 2014 CSC 35 (CanLII) at paras. 31-32).
In accordance with the principle of settlement privilege, mediations - although they may be called a hearing or take part during time scheduled for a hearing - are not open to the public.
Confidentiality Order Extends to All Related Proceedings
In accordance with Rule 7.9 of the LTB’s Rules of Procedure a confidentiality order granted by the LTB extends to all subsequent LTB proceedings regarding the original application unless the LTB orders otherwise. This includes requests to review, review hearings, L4 applications, and set aside orders.
For example, where the LTB restricts access to records in an L2 application for substantial interference and an order issues imposing a condition on the tenant, breach of which may permit the landlord to bring an application for eviction under s. 78 of the RTA, the subsequent L4 application alleging the condition was breached would be subject to the same confidentiality order as on the L2 Application. Further, any review order of the L2 Order or L4 Order, and any set aside motion of an order arising from the L4 Order, would also be subject to the same restrictions on the open court principle ordered in the original L2 Application.