|
Open Court - Administrative. CBC v. Chief of Police
In CBC v. Chief of Police (Div Ct, 2021) the Divisional Court reviews the 'open court' doctrine of public access to court records. Here it is applied to tribunal records, at a police disciplinary proceeding:Open Justice is a Core Democratic Principle
[23] It is trite to say that the “open court” principle is a central feature of democratic society. As Justice Fish stated succinctly for the Supreme Court in Toronto Star Newspapers Ltd. v. Ontario, “[I]n any constitutional climate, the administration of justice thrives on exposure to light – and withers under a cloud of secrecy”.[4] Open justice is a “cornerstone of the common law” and a “hallmark of a democratic society”.[5]
[24] An open justice system ensures that justice is done and, importantly, that it is seen to be done. As the Court stated in Vancouver Sun:Openness is necessary to maintain the independence and impartiality of the courts. It is integral to public confidence in the justice system and the public’s understanding of the administration of justice. Moreover, openness is a principal component of the legitimacy of the judicial process and why the parties and the public at large abide by the decisions of courts.[6] [25] Part and parcel of the right to access exhibits is the right to access them in a timely manner.[7]
Openness for Tribunals
[26] The same rationale informing the open court principle informs openness for tribunals.[8]
[27] In Southam v. Minister of Employment and Immigration, the Federal Court noted that:“…statutory tribunals exercising judicial or quasi-judicial functions involving adversarial type processes which result in decisions affecting rights truly constitute part of the ‘administration of justice’. The legitimacy of such tribunals’ authority requires that confidence in their integrity and understanding of their operations be maintained, and this can be effected only if their proceedings are open to the public.[9] [28] It follows that quasi-judicial hearings, are presumptively open and that any limit on openness must be justified through application of the Dagenais/Mentuck test.[10]
Openness Principles Apply to Police Discipline Hearings
[29] As openness principles apply to all quasi-judicial proceedings, they apply to police discipline hearings, which are quasi-judicial proceedings governed by the Statutory Powers and Procedures Act. In the pre-Dagenais decision, Ottawa (City) Commissioners of Police v. Lalande, the District Court dismissed an application to hold a police disciplinary hearing in camera stating:The public has a vital interest in the performance of police officers who are given great powers in order to protect the public. It is obvious that personal and embarrassing matters will or may be divulged during this hearing. I believe the right of the parties, there are two here, the public and the person charged, to a public and open hearing is a safeguard to the proper state of justice.[11] [30] In both Southam Inc. v. Canada[12] and in Canadian Broadcasting Corp. v. The City of Summerside[13], courts held that holding police disciplinary hearings in private violated s. 2(b) of the Charter.
Access to Exhibits
[31] It is well established that open proceedings require that the public be able to obtain copies of exhibits. The Supreme Court has described the ability to access exhibits as a corollary to the open court principle.[14] It has similarly held that the state “must not interfere with an individual’s ability to ‘inspect and copy public records and documents including judicial records and documents’’. Thus, where access to exhibits is denied, as with any other restriction on openness, it must be justified through application of the Dagenais/Mentuck test.[15]
....
[36] The Dagenais/Mentuck test was recently reformulated by the Supreme Court in Sherman Estate v. Donovan.[18] The Court recast the formerly two-part test as a three-part test, stating that any person asking the court to limit the open court principle must establish that: (a) court openness in the case at hand 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 reasonably alternative measures will not prevent this risk; and (c) as a matter of proportionality, the benefits of the order outweigh its negative effects.[19]
....
[46] As noted in Ottawa (City) Commissioners of Police v. Lalande[26], the public has a vital interest in the performance of the police officers that yield significant power in our society. This interest requires that the public have a full understanding of all relevant information when this performance is being evaluated by a tribunal. When consenting to its introduction by the prosecution, defence counsel stated that it was “part and parcel of this case.” The public ought to be able to consider for itself whether the video was important or not.
....
S.9(1) of the Statutory Powers Procedure Act does not override Dagenais-Mentuck test
[50] The respondents rely on s.9(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, which states:9 (1) An oral hearing shall be open to the public except where the tribunal is of the opinion that,
(a) matters involving public security may be disclosed; or
(b) 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, in which case the tribunal may hold the hearing in the absence of the public. [51] The respondents submit that the effect of s.9 (1) of the Statutory Powers Procedure Act is that the Dagenais-Mentuck test and the openness principle do not apply to police board hearings. There is no merit to this submission where, as was the case here, the hearing was a quasi-judicial professional misconduct hearing.[27] . Khan v. College of Physicians and Surgeons of Ontario [the para numbers were screwy when first issued]
In Khan v. College of Physicians and Surgeons of Ontario (Div Court, 2023) the Divisional Court extensively and usefully considered an 'open court' issue:The Applicable Principles
[1] The open court principle is a “hallmark of a democratic society” which “has long been recognized as a cornerstone of the common law”: Vancouver Sun (Re), [2004] 2 S.C.R. 332, [2004] S.C.J. No. 41, 2004 SCC 43, at paras. 23-24. See also: A.B. v. Bragg Communications Inc., 2012 SCC 46, [2012] 2 S.C.R. 567, at para. 11. The presumption that courts are open is fundamental to our justice system and is protected under s. 2(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (U.K.) 1982, c. 11.
[2] The freedom of the press to report on judicial proceedings and the right of the public to receive information have also been found to be protected by the constitutional guarantee to freedom of expression: Re Vancouver Sun, 2003 SCC 43, [2004] 2 S.C.R. 332, at para. 26.
[6] Under ss. 135 and 137(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, this court may impose an order requiring that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.
[7] The test applied when courts are asked to exercise their discretion to order that public access to a file or proceeding be restricted was reaffirmed by the Supreme Court of Canada in Sherman Estate v Donovan, 2021 SCC 25, at para. 38. In Sherman Estate, the Court recast the Dagenais/Mentuck test as follows:(1) court 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. [8] All three requirements must be met for a limit on court openness to be ordered.
Application
[9] The evidence that was before the Tribunal that the College requests be subject to a sealing order includes exhibits that contain personal information and personal health information regarding patients of Dr. Khan and their family members. This includes medical records, OHIP billing records, and photographs of patients obtained by the College during investigation. The records contain extensive, sensitive personal health information. In addition to highly personal medical information, the records include identifying and sensitive information such as OHIP numbers and personal addresses. The identities of the patients to whom these records relate are subject to the non-publication order made by the Tribunal.
Court Openness Poses a Serious Risk to an Important Public Interest
[10] In Sherman Estate, at para. 73, the Supreme Court held that “[p]rotecting individuals from the threat to their dignity that arises when information revealing core aspects of their private lives is disseminated through open court proceedings is an important public interest for the purposes of the test.” The Supreme Court further stated that “[v]iolations of privacy that cause a loss of control over fundamental personal information about oneself are damaging to dignity because they erode one’s ability to present aspects of oneself to others in a selective manner”: Sherman Estate, at para. 79. Patient health information, which is ordinarily confidential, strikes at the biographical core of an individual and is “sufficiently sensitive” to warrant the order sought: Sherman Estate, at para. 35.
[11] The confidentiality of patient records and of individuals’ personal information (including health information) is an important public interest. The importance of maintaining confidentiality of health records is enshrined in legislation, such as the Personal Health Information Protection Act, 2004, S.O. 2004, c.3, Sched. A (“PHIPA”), which permits disclosure of personal health information (including OHIP numbers) only in limited circumstances. Confidential patient health information strikes at the biographical core of an individual and is sufficiently sensitive to warrant the order sought: Sherman Estate, at para. 35.
[12] In this case, there is also a public interest in ensuring that confidential records obtained by the College by virtue of its statutory investigative powers remain protected. To fulfil its public protection mandate, the College has been granted sweeping powers to obtain records, including confidential personal health information “despite any provision in any Act relating to the confidentiality of health records.”: Code, s. 76(4). Confidential patient records may be obtained by the College and entered into evidence without the patient’s knowledge or consent. The public expects that, except in limited circumstances, their medical records will remain confidential: Osif v. College of Physicians and Surgeons of Nova Scotia, 2008 NSCA 113, at para. 22. This gives rise to a heightened duty to protect the privacy interests of patients and other third parties who have no say in whether their personal health information forms part of the evidentiary record.
[13] The Divisional Court has recognized that sealing orders respecting confidential patient medical records are routine in cases involving discipline of health professionals: Dr Kadri v. College of Physicians and Surgeons, 2020 ONSC 5296, para. 7.
[14] Accordingly, I am satisfied that court openness poses a serious risk to an important public interest.
The Order Sought is Necessary to Prevent This Serious Risk
[15] At the second stage, the court must consider whether reasonable alternative measures are available and restrict the order as far as possible without sacrificing the prevention of the risk: Sherman Estate, at para. 105.
[16] The Appellant submits that a redaction order would be sufficient to protect the patient information.
[17] The College submits that in this case, redaction is not feasible because of the volume of patient records and the risk of omitting to redact personal identifying information. The College has sought to distinguish those documents for which redaction is possible, which would be available in the public record (Appendix II), and those for which it would not be (Appendix I).
[18] The exhibit book consists of almost 4,500 pages containing numerous patient records with identifying information. In Osif, at para. 33, the Nova Scotia Court of Appeal found that redaction of such records was “neither a practical nor reasonable alternative.” In this case as well, the process would be time-consuming, subject to error and would delay the hearing of the appeal, which is scheduled to proceed in a couple of weeks.
[19] As a result, I am not satisfied that there are reasonable alternative measures available that would prevent the risks identified above. In fact, by categorizing the exhibits into those that can be redacted (Appendix II) and those that cannot (Appendix II), the College has proposed a reasonable alternative to sealing the entire record.
The Benefits Outweigh the Negative Effects
[20] In my view, the benefits of the order requested by the College outweigh the negative effects.
[21] First, a sealing order will protect the public disclosure of information identifying patients and their sensitive personal health information.
[22] Second, the negative effects of the order proposed are few. The College does not seek a sealing order over the entire record but has limited the documents for which a sealing order is sought to those that cannot be disclosed, even in redacted form because they contain sensitive personal health and identifying information (Appendix I). The public interest in open and accessible court proceedings does not extend to having access to individual patients’ clinical records or other sensitive personal information. Moreover, it is unlikely that the medical records at issue would be readily comprehensible to lay members of the public.
[23] The public will have access to those records that can be disclosed in redacted form (Appendix II) and the transcripts of the hearing before the Tribunal. The College further requests that the parties be permitted to refer in their facta to information contained in the sealed exhibits, as long as the information does not identify patients, in accordance with the non-publication order granted by the Tribunal under s. 45 of the Code. Needless to say, a complete record, including the sealed documents, will be available to the court.
[24] The hearing of the appeal would be open to the public and the media would be able to be present at the hearing and report all aspects of the case, besides the identities of patients and their family members, and their personal health information. The values underlying freedom of expression, including truth-seeking, would remain unimpeded: Osif, at para. 33. While the Appellant argues that a sealing order would shield the College’s misconduct from public scrutiny, he has not demonstrated how patient identities and personal health records would shed light on the College’s conduct.
[25] I do not accept the Appellant’s argument that a publication ban is not necessary because at least one document is already in the public domain. The photograph appears to have been published in breach of the publication ban ordered by the Tribunal.
[26] Similarly, I do not accept the Appellant’s submission that the records should be publicly available as a source of instruction to the medical community. The court file is for the purposes of adjudicating this proceeding in a manner consistent with the open court principle. Moreover, disclosure of patient records is permitted only in limited circumstances as set out in PHIPA.
[27] In my view, the order sought is as narrow as possible in the circumstances and protects the personal health information of patients while minimizing the impact on freedom of expression and the open court principle. . Harold The Mortgage Closer Inc. v. Chief Executive Officer of the Financial Services Regulatory Authority of Ontario
In Harold The Mortgage Closer Inc. v. Chief Executive Officer of the Financial Services Regulatory Authority of Ontario (Div Court, 2024) the Divisional Court considered a motion to quash a JR, here which challenged the issuance of a 'notice of proposal' by the 'Financial Services Regulatory Authority' (FSRA) tribunal to revoke and refuse to renew a mortgage broker license, to impose administrative penalties - and as well of the FSRA's publication of tribunal enforcement policy documents, and more. The applicants also filed for a full de novo hearing before the Financial Services Tribunal in relation to this matter.
Here the court addresses the Authority's "publication decisions" - including aspects of the public 'notice of proposal', which the court does not quash out of concern that the 'notice of proposal' contained some defamatory-like statements which had been shown to "to slag them in the marketplace":[8] Under the applicable statutory scheme, the applicants will be entitled to a full hearing process before the tribunal in respect of the allegations contained in the regulator’s notice of proposal. A very high degree of procedural protection is available to the applicants in light of the serious nature of the relief sought against them. The hearing is a full trial de novo. It is not just an appeal from the notice of proposal. The hearing outcome will be based on the evidence to be admitted, after pre-hearing disclosure, cross-examination of witnesses, and submissions.
[9] The regulator rightly distinguishes two types of claims brought by the applicants. They each result in different outcomes.
....
[23] The other aspect of the case involves the regulator’s publication decisions. The regulator submits that it did not exercise a statutory power of decision when it adopted its publication guidelines. They are not binding on anyone and do not have the force of law. They just tell the marketplace when to expect enforcement steps to be publicized by the regulator.
[24] Similarly, the regulator submits that it has no statutory duty to publish the applicants’ request for a hearing although the applicants dispute the facts in the notice of proposal and ask the regulator to be fair and balanced.
[25] The applicants can also show that competitors have used the notice of proposal as published by the regulator to slag them in the marketplace. They submit that the regulator’s decisions to publish the notice of proposal and the decision to refuse to publish their request for hearing impair its reputation and impact its legal rights.
[26] As I am not quashing these requests for judicial review, I will say little about them. The SCC has recognized peoples’ legal interest in their reputation. While I am dubious that the applicant has standing to challenge the publication guidelines or that the publication of the guidelines was an exercise of a statutory power, to the extent that the guidelines become an excuse or justification for the regulator’s publication decisions, I would not put challenging them beyond the applicants’ reach.
[27] But the real focus of the applicant is on the regulator’s decision to publish the notice of proposal and the decision to refuse to publish the request for a hearing. It is not impossibly far-fetched that ss. 3 and 6 of the Financial Services Regulatory Authority of Ontario Act impose constraints (if not a duty) on the activity of the regulator especially where reputational harm of a registrant is at risk (or is intended rightly or wrongly). Moreover, since the notice of proposal is not a dead letter in the tribunal hearing, issues of procedural fairness may arise concerning the regulator’s conduct if it affects the fairness of the hearing.
[28] I cannot say that it is plain and obvious that the applicants have no rights vis-à-vis the regulator’s decisions about what to publish or not publish concerning the applicants. I expressly leave open to the panel of the Divisional Court the possibility that it may find this issue too best dealt with first before the Financial Services Tribunal. But while the validity of the notice of proposal and its contents is squarely before the tribunal, I am less sure that this issue will necessarily be before the tribunal.
[29] I am in no way endorsing the strength of the claims to challenge either the guidelines themselves or the publication decisions surrounding the notice of proposal, I do not accept the regulator’s submissions that it is plain and obvious that they are either unreviewable private decisions or decisions that do not impair the legal rights or interests of the applicants.
[30] Mr. Solmon asks me to defer to the panel the question of whether the applicants need or ought to be granted more time to bring their applications under s. 5 (2) of the JRPA. Having quashed the claims against the notice of proposal, perhaps this is no longer an issue. Regardless, in my view, the panel that hears matters on their merits is generally better armed to assess the equities involved in the balancing of interests under s 5 (2). I therefore defer that issue to the panel.
|
