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Public Access - Open Court Doctrine

. P1 v. XYZ School

In P1 v. XYZ School (Ont CA, 2021) the Court of Appeal considered the open court principle in a case where the media sought the lifting of part of a banning order:
[23] Though sealing orders are normally interlocutory as concerns the parties to the litigation, in this case the non-party’s substantive rights are finally determined by the order. The rights are constitutional in nature and guaranteed by s. 2(b) of the Charter. They are finally determined because the sealing order precludes the ability of the Toronto Star to contemporaneously access, report and scrutinize all stages of a proceeding on behalf of the public.

[24] The freedom of the press has been historically recognized by the Supreme Court as a fundamental right in Canada. As Lamer C.J. wrote in the leading case, Dagenais v. Canadian Broadcasting Corp. (1994), O.R. (3d) 816, at p. 876, “a fundamental principle of our justice system … freedom of expression, including freedom of the press, is now recognized as a paramount value in Canadian society, as demonstrated by its enshrinement as a constitutionally protected right in s. 2(b) of the Charter.”

[25] The Supreme Court has found that the open court principle is “bound up” with the constitutionally protected right of freedom of the press and is a public good: see Canadian Broadcasting Corp. v. Manitoba, 2021 SCC 33, at paras. 3, 46.

[26] The importance of the open court principle has been recently re-affirmed in Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361, at paras. 1-2:
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.

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.
[27] The Toronto Star has no interest in the outcome of the litigation between the plaintiffs and the defendants. The Toronto Star’s interest is to be able to perform its function as the “eyes and ears” of the public.

[28] The facts here are analogous to those in Hollinger Inc. v. The Ravelston Corporation, 2008 ONCA 207, 291 D.L.R. (4th) 15, where this court considered an order affecting a non-party.

[29] In Hollinger, the motion judge made a sealing and protection order in respect of material filed for a Mareva injunction. The Globe and Mail sought intervener status to set aside the order. The motion judge dismissed the intervener motion. This court allowed the appeal, but for two different reasons. Two judges concluded that the motion judge’s refusal to grant intervener status for the limited purpose of challenging the order was in error and was itself a final order. They determined that the matter should be returned to the Superior Court for a new hearing and consequently there was no need to determine whether the order – standing alone – would be final or interlocutory for purposes of appeal routes. Juriansz J.A., however, squarely dealt with issue concluding that the order affecting the Globe and Mail was final. He would not have returned the matter to the Superior Court but would have granted intervener status.

[30] The reasons of Juriansz J.A. align with the situation here. At para. 52, he stated:
The principle [of interlocutory or final] becomes difficult to apply when third parties, unconcerned with the merits of an action, become involved in the proceedings for a limited purpose. The Globe, in arguing the protective order was final, emphasized it was a third party uninvolved in the action. I agree this is the key to the determination of the issue.[2]
[31] Juriansz J.A. went on to say at para. 54 that whether the motion judge's order maintaining the protective order is interlocutory or final depends on its effect on the rights of the Globe, considering “what was at stake for the Globe” in the motion. There, like here, what was at stake for the Globe was the ability to exercise its routine right of access to a court file, based on freedom of the press. Here, what is at stake for the Toronto Star is freedom of the press.
. 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]
. Turner v. Death Investigation Council et al.

In Turner v. Death Investigation Council et al. (Div Ct, 2021) the Divisional Court considered the 'open court' doctrine:
Recent Law Governing the Open Court Principle

[35] In Sherman Estate v. Donovan, 2021 SCC 25, the Supreme Court of Canada affirmed that it “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”: Sherman Estate para. 1.

[36] The substance of the approach to the open court principle articulated in cases such as Sierra Club, 2002 SCC 41 was affirmed. The analytical method, however, for the consideration of requests for sealing orders and the like was clarified and restated. In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption 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.
[37] Only where all three of these prerequisites have been met can a discretionary limit on 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 (Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, at paras. 7 and 22): Sherman Estate, para 38.

[38] The discretion is structured and controlled in this way to protect the open court principle, which is constitutionalized under the right to freedom of expression at s. 2(b) of the Charter ((Canadian Broadcasting Corp. v. New Brunswick (Attorney General), 1996 CanLII 184 (SCC), [1996] 3 S.C.R. 480, at para. 23). Sustained by freedom of expression, the open court principle is one of the foundations of a free press given that access to courts is fundamental to newsgathering: Sherman Estate, para. 39.

[39] The strong presumption in favour of open courts 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: Sherman Estate, para. 2.

[40] However, personal information disseminated in open court can be more than a source of discomfort and may result in an affront to a person’s dignity. Insofar as privacy serves to protect individuals from this affront, it is an important public interest relevant under Sierra Club. Dignity in this sense is a related but narrower concern than privacy generally; it transcends the interests of the individual and, like other important public interests, is a matter that concerns society at large. A court can make an exception to the open court principle, notwithstanding the strong presumption in its favour, if the interest in protecting core aspects of individuals’ personal lives that bear on their dignity is at serious risk by reason of the dissemination of sufficiently sensitive information. The question is not whether the information is “personal” to the individual concerned, but whether, because of its highly sensitive character, its dissemination would occasion an affront to their dignity that society as a whole has a stake in protecting: Sherman Estate, para.33.

[41] This public interest in privacy focuses the analysis on the impact of the dissemination of sensitive personal information, rather than the mere fact of distribution, which is frequently risked in court proceedings and is necessary in a system that privileges court openness. It is a high bar. This public interest will only be seriously at risk where the information in question strikes at the core identity of the individual concerned: information so sensitive that its dissemination could be an affront to dignity that the public would not tolerate, even in service of open proceedings: Sherman Estate, para. 34.

[42] Applicants for an order making exception to the open court principle cannot content themselves with an unsubstantiated claim that this public interest in dignity is compromised any more than they could by an unsubstantiated claim that their physical integrity is endangered. The applicant must show on the facts of the case that, as an important interest, this dignity dimension of their privacy is at “serious risk”. For the purposes of the test for discretionary limits on court openness, this requires the applicant to show that the information in the court file is sufficiently sensitive such that it can be said to strike at the biographical core of the individual and, in the broader circumstances, that there is a serious risk that, without an exceptional order, the affected individual will suffer an affront to their dignity: Sherman Estate, para. 35.

....

[62] In Canada (Commissioner of Competition) v Parrish & Heimbecker Limited, 2021 CanLII 82 (CT), the Competition Tribunal rejected a similar argument put forth by the Commissioner of Competition. In that case, the Commissioner proposed that farmers who provided signed witness statements, but who feared economic retaliation from the grain elevator owner for their participation in the investigation, should have their identities redacted. The Tribunal held that this proposal bordered on allegations of witness tampering and witness intimidation. Compelling evidence would be required to support such an approach. However, the Commissioner’s evidence fell well short of the mark in that case. See also: Adult Entertainment Association of Canada the Nuden v. Ottawa (City), 2005 CanLII 16571 where Hackland J. rejected a request for anonymity on behalf of female adult entertainment performers seeking to challenge a bylaw.




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