Simon's Legal Resources

Open Court - Practice

. Canada v. CAE Inc.

In Canada v. CAE Inc. (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought against "an order of the Tax Court of Canada .... granting a motion by the respondent to obtain an interim confidentiality order to protect certain documents (the Confidential Documents) from public disclosure during the discovery process" (an 'open court' order).

Here the court considered a confidentiality/open-court practice issue, that of the service and filing of the sought-to-be confidential material:

VI. Were the appellant’s rights to procedural fairness breached because the respondent did not serve and file the Confidential Documents?

[40] The appellant argues that the respondent’s failure to serve and file the Confidential Documents in accordance with the Rules undermined its ability to cross-examine the respondent’s affiant, to file evidence in support of its position in the motion and to fully prepare its submissions. The appellant states that the respondent should not have been permitted to unilaterally impose a procedure for disclosure of the Confidential Documents, whether at its counsel’s office or at the hearing of the motion, and that the Tax Court’s acquiescence in the non-compliant procedure resulted in an unfair process.

[41] I am not persuaded by the appellant’s arguments and find no breach of its rights to a fair and equitable process.

[42] First, the appellant has not established a breach of the Rules by the respondent. Rule 67 requires a notice of motion "“together with the affidavits or other documentary material to be used at the hearing of the motion”", to be served on the other party. I find that the respondent did not breach Rule 67 in serving affidavit evidence only. The respondent cannot be said to have "“used”" the Confidential Documents by simply making them available for review to the Court and the appellant at the hearing.

[43] Second, the appellant chose not to cross-examine the respondent’s affiant and, equally, chose not to file its own affidavit evidence. The appellant’s concerns with the extent of the respondent’s evidence does not mean it was unable to challenge the evidence as filed. In these circumstances, I find that the Tax Court committed no error in observing the lack of evidence from the respondent and in relying on the uncontested affidavit evidence served and filed by the appellant.

[44] I find that the appellant received sufficient disclosure to know the case it had to meet such that the process was fair in the circumstances (Shull v. Canada, 2025 FCA 25 at para. 6, citing Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69 at para. 54). As the Tax Court stated, it would have been preferable for the respondent to serve and file a full list of documents. It would also have been preferable for the parties to cooperate in advance of the hearing to determine how best to safeguard the Confidential Documents while ensuring full access to the appellant and its representatives. The process was nevertheless fair to both sides and the Tax Court has enabled the parties to carry out discovery with assurance to the respondent of confidentiality and to the appellant of full access to the Confidential Documents.

[45] In closing, I would emphasize that neither party has been prejudiced, whether procedurally or substantively, by the Order. In addition, there has been no compromise to the open court principle. Again, when and if either party seeks to file a transcript of the examinations for discovery, the Confidential Documents themselves or documents on the respondent’s list of documents, that party is required to address the Tax Court and to then serve and file the motion. Both parties will have the opportunity to present their arguments regarding the motion, and to request a permanent confidentiality order which will be assessed in accordance with the Sherman conditions.

. R. v. Bernier

In R. v. Bernier (Ont CA, 2026) the Ontario Court of Appeal dismissed an appeal, this brought against an order "dismissing an application for certiorari" relating to charges under the Taxation Act (Ontario).

Here the court considered the effect of not seeking a publication ban at the first level of proceedings:

[8] The appellant also applies for an order for a publication ban on his full name at, and following, the hearing of this appeal. He wishes to be identified only by his initials.

[9] Applying the principles in Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, the application is dismissed. The appellant has not established that court openness poses a serious risk to an important public interest. We take into account that the appellant was convicted and sentenced for provincial offences. The case proceeded in the courts below without a request by the appellant to initialize his name. We also note that the proceedings in the courts below, in which the appellant’s full name is referenced, are already in the public domain. The certiorari judgment that the appellant seeks to appeal and other rulings related to this case are available online, without initialization.

[10] The application is dismissed.

. Thorne v. Good Health Walk-In Clinic

In Thorne v. Good Health Walk-In Clinic (Ont Div Ct, 2026) the Ontario Divisional Court allowed an HRC JR, this brought against an HRTO decision where "the Tribunal dismissed Mr. Thorne’s claim that he was discriminated against by Good Health Walk-in-Clinic".

Here the court considered the effect of not seeking an anonymity ban from the first level of proceedings:

[1] The applicant has requested a sealing order and publication ban regarding their medical records and identity and has complied with the court’s practice direction before making this request. There is no objection.

[2] We agree that the medical records should be sealed, as they meet the test in Sherman Estate v. Donovan, 2021 SCC 25, [2021] 2 S.C.R. 75, at para. 38. That part of the court record shall form a sealed record. The remaining portion of the court documents shall remain in the public record. The anonymity order is not granted. The applicant did not seek that order at the HRTO. The HRTO decision that we are reviewing, including the applicant’s name and a discussion about the nature of the issues, has long been public through the publication of the HRTO decision on CanLII.

. Law Society of Ontario v. AA

In Law Society of Ontario v. AA (Ont CA, 2026) the Ontario Court of Appeal allowed an LSO appeal, that against the decision on an LSO-brought JR which upheld a LST Appeal Division decision supporting a lawyer application on good character grounds.

Here the court considers the practical effect of open court orders being reversed, here at any tribunal or court level as the matter progresses upward:

[243] While I have concluded that the Divisional Court erred in not conducting a fresh Sherman Estate analysis before making its anonymization order permanent, I would not set aside or vary the Divisional Court’s anonymization and non-publication decision with respect to its record, as to do so would defeat the conclusion set out above that an anonymization and non-publication order is presently warranted.

[244] Therefore, I would decline to set aside the Divisional Court’s decision with respect to anonymization and non-publication. That decision should remain in effect with respect to its record, until and unless it is varied by the Divisional Court.

. Law Society of Ontario v. AA

In Law Society of Ontario v. AA (Ont CA, 2026) the Ontario Court of Appeal allowed an LSO appeal, that against the decision on an LSO-brought JR which upheld a LST Appeal Division decision supporting a lawyer application on good character grounds.

Here the court agrees that an open court principle cannot be waived, as it is not an individual party 'right':

[196] I also agree with the Law Society that it is doubtful that a party can waive the application of the open court principle. It cannot be said to be the privilege of a particular litigant: see e.g., L.C.F. v. G.F., 2016 ONSC 6732, 406 D.L.R. (4th) 750, at para. 21. Rather, it is a right of the public at large, emanating from the “constitutionally-entrenched right of freedom of expression” and designed to protect a central feature of liberal democracies, being the “public scrutiny” of open courts: Sherman Estate, at paras. 1-2.

. Ontario Addiction Treatment Centres v. Canada (Attorney General)

In Ontario Addiction Treatment Centres v. Canada (Attorney General) (Fed CA, 2023) the Federal Court of Appeal considered an appeal from a JR of a refusal to grant a "request for remission of tax under subsection 23(2) of the (SS: federal) Financial Administration Act".

Here the court comments briefly on the 'open court' principle, and makes a useful practice point:

[11] The Federal Court erred in closing the whole hearing. The default is that court proceedings are open. Any secrecy must be necessary, justified and minimized: Sherman Estate v. Donovan, 2021 SCC 25 458 D.L.R. (4th) 361; Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522.

[12] In the Federal Court, the submissions containing confidential information were only a small part of the hearing. At most, it should have closed only a small part of its hearing. In fact, in this Court it was possible to keep the hearing open for all but a few minutes. One way to do this is to invite counsel in the course of their public oral submissions on this point, if necessary, to draw the Court’s attention to paragraphs in the confidential memoranda filed and then to make their points orally without disclosing the confidential information.