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Civil Litigation - Public Access - General

. Canadian Broadcasting Corp. v. Manitoba

In Canadian Broadcasting Corp. v. Manitoba (SCC, 2021) the Supreme Court of Canada considered lifting a publication ban when the Court of Appeal had ruled below that they were functus officio:
[62] It is best to note at the outset that appellate jurisdiction, such as that being exercised by the Court of Appeal in the proceeding below, must be grounded in legislation (R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, at para. 21). In addition to any explicit grant, statutory and appellate courts should be understood to have the implicit power to control their own process and exercise other powers that are practically necessary to accomplish the role the law assigns them (R. v. Cunningham, 2010 SCC 10, [2010] 1 S.C.R. 331, at para. 19; Lochner v. Ontario Civilian Police Commission, 2020 ONCA 720, at para. 27 (CanLII)). I agree with the Attorney General of British Columbia that it may be unhelpful to describe this implicit authority as “inherent jurisdiction” given that appellate powers are, ultimately, rooted in statute (transcript, at pp. 100‑1).

[63] The legislative foundation for the Court of Appeal’s jurisdiction over the motion on court openness is plain here. As I have said, the supervisory jurisdiction over the court record is a feature of all courts (MacIntyre, at p. 189) and this is no less true of an appellate court. As part of the court’s authority to control its own process, the power over the openness of proceedings and over the court record arises here by necessary implication from the legislative grant of the appellate court’s adjudicative authority (see, generally, Cunningham, at para. 19). As a matter of procedural necessity — a publication ban or a sealing order may remain in place long after the substance of the appeal has been decided — this jurisdiction continues even after the formal judgment on the merits of a given appeal has been entered unless ousted by legislation. The Court of Appeal therefore had continuing, ancillary jurisdiction to consider the CBC’s motion regarding sealing orders and publication bans. This included implied jurisdiction to vary or vacate its orders limiting court openness in accordance with the common law principles considered above. The only remaining question is whether any applicable legislation limits this jurisdiction for the Court of Appeal in this case.


[77] Turning to the substance of the CBC’s motion, any discretionary limits on access to and publication of the contents of the court record must be understood in reference to the test from Sierra Club as recently recast by this Court in Sherman. Court proceedings are presumptively open to the public (A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at para. 11). A court can order discretionary limits on openness only where (1) openness poses a serious risk to an important public interest, (2) the order sought is necessary to prevent that risk and (3) the benefits of the order outweigh its negative effects (Sherman, at para. 38, citing Sierra Club, at para. 53).


[83] Consistent with this purpose, all materials that are made available to the court for the purposes of deciding the case — in other words, for the purposes of exercising its judicial power — are subject to the open court principle (see Canadian Broadcasting Corp. v. R., 2010 ONCA 726, 102 O.R. (3d) 673, at paras. 42‑44; see also Aboriginal Peoples Television Network v. Alberta (Attorney General), 2018 ABCA 133, 70 Alta. L.R. (6th) 246, at para. 48). In this case, the Court of Appeal had before it a motion to admit the Posner affidavit as new evidence. ....
. Ricard v. The University of Windsor

In Ricard v. The University of Windsor (Div Ct, 2021) the Divisional Court considered a motion for a sealing order and publication ban in a judicial review application:
[6] I am satisfied that this is an appropriate case for a publication ban and sealing order and that it meets the recently restated test in Sherman Estate v. Donovan, 2021 SCC 25. As held by the Supreme Court, the test requires the court to find that:
a. Court openness poses a serious risk to an important public interest;

b. The order sought is necessary to prevent this serious risk to the identified interest because reasonable alternative measures will not prevent this risk; and

c. As a matter of proportionality, the benefits of the order outweigh is negative effects.
[7] With respect to the first part of the test, in Sherman Estate, the Supreme Court recognized that preservation of an individual’s dignity is a matter of public interest. At para. 75, the Court held that a person’s dignity can be at risk if sensitive personal information relevant to core aspects of that person’s life are made public through court proceedings. At para 77, the Court specifically identified “subjection to sexual assault or harassment” as the type of personal sensitive information that, if exposed, could pose a serious risk to a person’s dignity. Keeping the identity of complainants confidential in the context of cases involving allegations of sexual assault is also consistent with sealing orders and publication bans made in civil cases that predate the Sherman Estate decision. For example, as held by Faieta J. in Fedeli v. Brown, 2020 ONSC 994 (Sup. Ct.), at para. 9:
The privacy interests of a person who makes an allegation of sexual assault or sexual harassment in a civil proceeding is high, particularly when she has not initiated the civil proceeding. A complainant may be subject to unnecessary trauma and embarrassment, both for herself and her family, if she is identified. Without protection of her privacy interests, a person who has been sexually assaulted or sexually harassed may be unwilling to come forward. Further, the failure to afford such protection to a person alleging sexual assault or sexual harassment may deter other persons from coming forward to report sexual misconduct. Such interests are recognized and protected in a criminal proceeding as s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46, provides that an order banning publication of any information that could identify a victim of sexual assault is mandatory if sought by the Crown or victim. In my view, the policy reflected by s. 486.4 of the Criminal Code is equally applicable in these civil proceedings.
[8] Accordingly, I am satisfied that there is a public interest in protecting the confidentiality of Jane Doe and other complainants involved in this case and, therefore, the order requested in this case meets the first part of the Sherman Estate’s test.

[9] I am also satisfied that the order meets the two other parts of the test. The order is necessary to prevent the risk that Jane Doe and the other complainants will be publicly identified. With one small exception addressed below, the relief sought is not overly broad. Finally, the benefits of the order sought outweigh its negative effects. Protecting the privacy interests of Jane Doe and other complainants far outweighs any minimal interest the public may have in knowing their identities.
. Sherman Estate v. Donovan

In Sherman Estate v. Donovan (SCC, 2021) the Supreme Court of Canada considers the 'open court' principle, in the context of a newspaper reporting on estate proceedings. The case is a definitive statement by the court on this freedom of expression and privacy issue since Sierra Club of Canada v. Canada (Minister of Finance) (SCC, 2002). See paras 29-36 for a summary, with the 'Test for Discretionary Limits on Court Openness' at paras 37-45, and general comments on the issue of privacy at paras 46-85]:
[1] This Court has been resolute in recognizing that the open court principle is protected by the constitutionally‑entrenched right of freedom of expression and, as such, it represents a central feature of a liberal democracy. As a general rule, the public can attend hearings and consult court files and the press — the eyes and ears of the public — is left free to inquire and comment on the workings of the courts, all of which helps make the justice system fair and accountable.

[2] Accordingly, there is a strong presumption in favour of open courts. It is understood that this allows for public scrutiny which can be the source of inconvenience and even embarrassment to those who feel that their engagement in the justice system brings intrusion into their private lives. But this discomfort is not, as a general matter, enough to overturn the strong presumption that the public can attend hearings and that court files can be consulted and reported upon by the free press.

[3] Notwithstanding this presumption, exceptional circumstances do arise where competing interests justify a restriction on the open court principle. Where a discretionary court order limiting constitutionally‑protected openness is sought — for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order — the applicant must demonstrate, as a threshold requirement, that openness presents a serious risk to a competing interest of public importance. That this requirement is considered a high bar serves to maintain the strong presumption of open courts. Moreover, the protection of open courts does not stop there. The applicant must still show that the order is necessary to prevent the risk and that, as a matter of proportionality, the benefits of that order restricting openness outweigh its negative effects.

[4] This appeal turns on whether concerns advanced by persons seeking an exception to the ordinarily open court file in probate proceedings — the concerns for privacy of the affected individuals and their physical safety — amount to important public interests that are at such serious risk that the files should be sealed. The parties to this appeal agree that physical safety is an important public interest that could justify a sealing order but disagree as to whether that interest would be at serious risk, in the circumstances of this case, should the files be unsealed. They further disagree whether privacy is in itself an important interest that could justify a sealing order. The appellants say that privacy is a public interest of sufficient import that can justify limits on openness, especially in light of the threats individuals face as technology facilitates widespread dissemination of personally sensitive information. They argue that the Court of Appeal was mistaken to say that personal concerns for privacy, without more, lack the public interest component that is properly the subject‑matter of a sealing order.

[5] This Court has, in different settings, consistently championed privacy as a fundamental consideration in a free society. Pointing to cases decided in other contexts, the appellants contend that privacy should be recognized here as a public interest that, on the facts of this case, substantiates their plea for orders sealing the probate files. The respondents resist, recalling that privacy has generally been seen as a poor justification for an exception to openness. After all, they say, virtually every court proceeding entails some disquiet for the lives of those concerned and these intrusions on privacy must be tolerated because open courts are essential to a healthy democracy.

[6] This appeal offers, then, an occasion to decide whether privacy can amount to a public interest in the open court jurisprudence and, if so, whether openness puts privacy at serious risk here so as to justify the kind of orders sought by the appellants.

[7] For the reasons that follow, I propose to recognize an aspect of privacy as an important public interest for the purposes of the relevant test from Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522. Proceedings in open court can lead to the dissemination of highly sensitive personal information that would result not just in discomfort or embarrassment, but in an affront to the affected person’s dignity. Where this narrower dimension of privacy, rooted in what I see as the public interest in protecting human dignity, is shown to be at serious risk, an exception to the open court principle may be justified.


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