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Open Court - Settlement Privilege. Fletcher v. Ontario
In Fletcher v. Ontario (Ont CA, 2024) the Court of Appeal considered (and dismissed) a native appeal concerning the instatement of an indigenous reserve after the Crown had disregarded a Treaty duty to establish one since 1906. The essential issue of the case was the size of a 'new' reserve, as the Treaty calculated that by the band population - but was that the 1906 population or the modern population (ie. the 'crystallization date')? The trial court found it to be the 1906 population.
In these quotes the court considers the 'open court' principle, here in competition with 'settlement privilege':(2) The Sealing Order
[134] Upon filing its motion to admit the Settlement Agreement, Canada obtained an interim sealing order from Brown J.A. with respect to the Agreement and the negotiation protocol. Canada seeks a continuation of that sealing order. The MCFN consents to Canada’s request in this regard, while Ontario takes no position.
[135] I would dismiss Canada’s motion to continue the sealing order. As I explain below, Canada has not demonstrated that the public objectives of “administration of justice, the promotion of settlements and settlement privilege” are at “serious risk” on the facts of this case, namely because the most salient elements of the Settlement Agreement are already publicly available through the OIC.
[136] Canada’s principal submission is that disclosure of the documents could have a negative impact upon and jeopardize future Crown-First Nation negotiations. In effect, Canada argues that in order to be able to negotiate effectively with other First Nations in the future, confidentiality must be guaranteed. In oral argument, Canada expressed a concern that negotiators would not be frank, open and honest in their dealings for fear that their positions, as well as the negotiation process, might be exposed and ridiculed.
[137] The leading authority governing limitations on the open court principle is the Supreme Court’s decision in Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361, where the court clarified the test for whether a sealing order should be granted. To succeed, a party must establish that:(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. [138] Only where all three of these prerequisites have been satisfied can a discretionary limit on court openness – for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order – properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments: Sherman Estate, at para. 38. Throughout the unanimous decision, the Court emphasized the foundational nature of the open court principle in a democracy and the exceptional nature of limitations on that principle.
[139] The first branch requires the moving party to demonstrate that disclosure of the information would pose a serious risk to an important public interest. The identification of an important interest and assessing the seriousness of the risk to that interest are separate and qualitatively distinct inquiries: Sherman Estate, at para. 42. While the determination of an important public interest might be done in the abstract at the level of general principles that stretch beyond the parties to the particular dispute, whether that interest is at “serious risk” is a fact-based finding that, for the judge considering the appropriateness of an order, is necessarily made in context.
[140] Canada has not satisfied this first requirement of the test. While invoking the public interest exception of (in this case) settlement privilege, it does so at a highly general level. As Kasirer J. stated in Sherman Estate, it is necessary to identify both the public interest at issue and the seriousness of the risk to it within the specific facts viewed in context: at para. 42 (emphasis added). Here, Canada has only generally raised the broad concern that removing the seal would have a “chilling effect” on future Crown-First Nations negotiations.
[141] To begin with, Canada has not pointed to any material elements of the Settlement Agreement that are not already in the public domain. Although Canada identifies articles 3.1, 3.2, 7.1, 7.2, and 7.3 as being “particularly at risk” of affecting future negotiations, these provisions are expressly covered by the Schedule to the OIC dated February 29, 2020 and are therefore already in the public domain. For example, article 1 of the OIC sets out the amount of financial compensation ($146,347,476), which parallels article 2 of the Agreement. Article 2 of the OIC also summarizes article 3 of the Agreement, which provides for the possible acquisition of “up to” 3,200 acres of reserve land. Article 4 of the OIC summarizes the ratification process and requirements provided in article 7 of the Agreement, and confirms that, by the time of the OIC, the ratification requirements had been met. It is trite law that neither a sealing order nor a publication ban may be granted for information that is already in the public domain: see e.g., R. v. Ottawa Citizen Group Inc., (2005) 2005 CanLII 93777 (ON CA), 75 O.R. (3d) 590, at para. 23.
[142] It follows that, while redacting part of the Settlement Agreement could be an appropriate alternative measure in some cases, it cannot be here, because Canada has not identified any such proposed provisions that are not already in the public domain.
[143] Moreover, I am unable to say that the sealing order sought is necessary to protect settlement privilege with respect to ongoing or future Crown-First Nations negotiations. Of course, settlement privilege is a recognized and important public interest. As I have just discussed, however, the content of the Settlement Agreement is already in the public domain, and there is nothing in the Agreement that discloses anything about the content of the negotiations themselves. For example, the Agreement is silent on what the parties’ initial positions were or which party compromised on what issues.
[144] In the course of oral argument, counsel suggested that the serious risk to an identified public interest arises because the Settlement Agreement might be seen as a “template” to be followed by future agreements. I do not agree that the facts of the ultimate settlement with Canada in this case can be said to have a “chilling effect” on future settlements or settlement discussions. Importantly, all the material elements of the Settlement Agreement are already in the public domain.
[145] In short, Canada has not met the Sherman Estate test. I would order that the sealing order be lifted.
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