Civil Litigation - Recording of Proceedings. Canadian National Railway Company v. Canada (Transportation Agency)
In Canadian National Railway Company v. Canada (Transportation Agency) (Fed CA, 2023) the Federal Court of Appeal considered a motion on an administrative tribunal appeal [under Canada Transportation Act, s.41] (though the case bears on JRs as well), here seeking disclosure of CTA case-related documents for entry into the record [under R317: 'Material in the Possession of a Tribunal'].
In these quotes the court interestingly adds 'open court' doctrine as a factor into such a disclosure motion, insofar as a party seeks confidentiality or secrecy over such sought material:
 In recent years, courts have narrowed the legal grounds for secrecy in proceedings, have become more willing to test justifications offered for secrecy, and have been more vigilant to ensure that the disclosure of evidence in proceedings is adequate: Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41,  2 S.C.R. 522 and Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361 (limits on secrecy in court); Vancouver International Airport Authority v. Public Service Alliance of Canada, 2010 FCA 158,  4 F.C.R. 425 (narrowing of public interest privilege); Babcock v. Canada (Attorney General), 2002 SCC 57,  3 S.C.R. 3 (enhancement of review of privilege under section 39 of the Canada Evidence Act, R.S.C. 1985, c. C-5); Tremblay v. Quebec (Commission des affaires sociales), 1992 CanLII 1135 (SCC),  1 S.C.R. 952 at 965-966 and Ellis‑Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4,  1 S.C.R. 221 (deliberative secrecy must sometimes give way so that there can be meaningful review); Tsleil-Waututh Nation v. Canada (Attorney General), 2017 FCA 128 at paras. 53-54, Gitxaala Nation v. Canada, 2016 FCA 187,  4 F.C.R. 418 and Canadian Council for Refugees at paras. 111-112 (in appropriate circumstances adverse inferences can be drawn from an assertion of secrecy or a failure to disclose).. Michail v. Ontario English Catholic Teachers’ Association
 An order will issue in accordance with these reasons. In particular, the appeal book shall contain, in addition to the material listed in Rule 344(1), the material described in paragraph 25, above, with the exception of the briefing note.
 It is likely that some of this material is confidential. Thus, CN has sought a confidentiality order. However, CN has not made any submissions on why a confidentiality order should be made or what documents should be covered by it.
 It is possible that disputes could arise about the precise material covered by CN’s request and what individual documents are confidential. Thus, in the interests of minimizing disputes and having this matter proceed “as quickly as is practicable” as required by subsection 41(3) of the Canada Transportation Act, this Court will order that the parties work together to prepare agreed-upon indices for a public appeal book and a confidential appeal book for the Court’s review. The parties will also have to persuade the Court that a confidentiality order is supported by the principles in Sherman Estate and Sierra Club. In case the parties cannot agree on the indices or the material that is to be confidential, this Court will also provide for the exchange of submissions.
In Michail v. Ontario English Catholic Teachers’ Association (Ont CA, 2019) the Court of Appeal considered the propriety of a party making their own private recordings of legal proceedings and using them as they saw fit:
 Video recording of proceedings in courts in Ontario are governed by s. 136(1) of the Courts of Justice Act. Section 136(1) establishes a general prohibition against video recording, subject to exceptions provided in s. 136(3). That subsection provides that the general prohibition does not apply to a video recording “made with the authorization of the judge”. A judge is given statutory jurisdiction to authorize a video recording in three circumstances:
(a) where required for the presentation of evidence or the making of a record or for any other purpose of the court hearing; The moving party’s principal submission was that she has a constitutional right to video record and disseminate the proceedings, subject to the court satisfying her that there is a compelling reason in the particular circumstance of this proceeding not to do so. As we understand it, the submission was not a constitutional challenge to s. 136, but rather grounded in the argument that all statutory grants of discretion must be exercised in accordance with the principles underlying the constitution. She argues that the open courts principle requires that video recording, streaming, and archiving be permitted.
(b) in connection with any investitive, naturalization, ceremonial or other similar proceeding; or
(c) with the consent of the parties and witnesses, for such educational or instructional purposes as the judge approves.
 We do not agree. The open courts principle is one constitutional principle among many and is not automatically dispositive. Judicial discretion in this instance, like all exercises of judicial discretion, must be exercised in a manner that conforms to the requirements of the rule of law: Roncarelli v. Duplessis, 1959 CanLII 50 (SCC),  S.C.R. 121. This includes the requirement that the exercise not be arbitrary, and that it respect authoritative precedents and rules established in advance by other institutions. Judges have a wide discretion to authorize video recording under s. 136(3), but there must be some reason for it that relates to the circumstances of the particular case: R. v. Dunstan, 2017 ONCA 432, at para. 55. What the moving party is seeking is, in effect, to create a default authorization for video recording. This would be contrary to the Act. Proposals to amend the Act to allow video recording of hearings of motions and appeals, as the moving party pointed out, have been made from time to time. Whatever the merits of those proposals, they have not been adopted legislatively, and are not law.
 In the alternative, the moving party also offered reasons for her demand. These were evidently framed so as to bring the demand within the exceptions in s. 136(3)(a) and (c): that a video recording was required for “the making of a record or for any other purpose of the court hearing”, and for educational purposes.
 With respect to educational purposes, she argued that it would benefit the people of Ontario generally, and those with an interest in labour law particularly, to be educated by viewing her arguing her motion to review the motion judge’s decision.
 With respect to “the making of a record or for any other purpose of the court hearing”, she argued that a record of the proceedings was needed to document any abuse of process that might occur during the hearing.
 In our view the moving party has not established that this is an appropriate case in which we should exercise the discretion provided by s. 136(3).
 Courts have interpreted s. 136(3) as providing broad authority to authorize video recording where it facilitates the presentation of evidence or otherwise assists in the presentation of a party’s case at trial: Restoule v. Canada (Attorney General), 2018 ONSC 114, at para. 36; Dunstan, at para. 52. In the unusual circumstances of Restoule, broadcasting and archiving of video recordings of the trial were permitted. Unlike the present motion, which is at root a dispute between private parties with little if any broader significance, the issues in Restoule are public law disputes of great public significance – the interpretation of treaties signed in 1850, and Crown liability flowing from them. It was anticipated that the evidence to be presented would be significant:
The evidence already collected in the expert reports of the witnesses may be the best curated collection of the history of the events leading up to these treaties ever assembled. In addition, the evidence from Elders, Chiefs, and ethno-historians on the lives, culture and beliefs of the Great Lakes Anishinaabe constitutes a major collection in itself. Most significantly, many of the treaty beneficiaries reside in remote and isolated communities spread out over a vast area of land. The extraordinary step of holding the proceedings in four separate communities was itself determined not to be an adequate response to the problem of lack of access to the proceedings for those affected. Accordingly, the motion judge in Restoule determined that live stream broadcasting and archiving of the proceedings was necessary “for providing a process that is perceived to be fair by the parties”, coming within the discretion provided by s. 136(3)(a) to grant an order “for any other purpose of the court hearing.”
 The moving party’s motion has nothing in common with Restoule. An idiosyncratic and unsubstantiated distrust in the legal system does not generate an entitlement to create a video record of proceedings on demand under s. 136(3)(a). This court is not a court of record, and it is not clear what record the moving party wished to create. Unlike in Restoule, her appeal has been quashed and there is no proceeding in existence. And unlike in Restoule, the purpose for which she seeks a video recording is unrelated to the substance of the hearing itself.
 The argument that a video recording was sought for public education purposes under the exception set out in s. 136(3)(c) likewise fails. The moving party’s argument rests on reading “education” as encompassing the generation and dissemination of any piece of information. This is too broad a reading. The moving party is not engaged in education or instruction in the sense intended by the statute.
The motion to review the motion judge’s decision
 This court makes digital audio recordings of its proceedings for internal use. These recordings are not governed by s. 136, which addresses the actions of third parties in making recordings. This court makes these recordings pursuant to its inherent power to govern its own process. As set out in s. 17 of the Practice Direction Concerning Civil Appeals at the Court of Appeal for Ontario, the court makes the recordings available to the parties upon request, for personal use only, and on the condition that the person requesting the recording sign an undertaking agreeing to respect the limits on the permitted uses of the recording.
 Section 17 of the Practice Direction prohibits dissemination of the digital audio recording, but also provides that the prohibition is subject to a court order to the contrary. In our view, the Practice Direction allows for an application to be made to a single justice of this court, for an order dispensing with the requirement that the digital audio recording not be disseminated. The moving party’s motion was therefore properly before the motion judge. However, for the reasons given above with respect to the video recording, the motion is properly dismissed. The moving party did not provide any reason that would justify releasing her from the obligation not to disseminate.
 The motion judge made no error in dismissing the motion for an order that certain reasons for decision be posted to the court’s website. As the motion judge noted, it is left to the individual motion judge to decide whether or not to publish his or her reasons on the court’s website. The operational decisions of this court are not subject to review.
 With respect to the proposed challenge to the constitutional validity of the s. 136 of the Courts of Justice Act, the motion judge made no error in dismissing the motion for lack of jurisdiction. A constitutional challenge to a statute cannot be brought in this court in the absence of a valid appeal. As the appeal had been quashed, the motion judge made no error in dismissing the motion.