The challenges in applying the "Open Court" principle

A new case out of Nova Scotia on anonymization requests plus insights into the federal budget and ostriches.

NOTE: next week there will be no newsletter as I will be traveling home from Toronto after the SOAR conference.

This week’s news cycle has been dominated by the federal budget and ostriches. I have not had a chance to look at the budget in much detail, but the Canadian Bar Association has and finds it “concerning”:

The budget notably proposes to cut more than $20 million over three years from support services for administrative tribunals, which Canadians rely on as a major part of our judicial process.

One of them, the Social Security Tribunal, deals with disputes related to programs such as Old Age Security and employment insurance. With fewer resources for support services, these tribunals may be less able to handle cases efficiently.

The budget has also proposed a cut of $57.8 million in cuts to the Administrative Tribunals Support Services, the Canadian Human Rights Commission, the Law Commission of Canada, the Office of the Director of Public Prosecutions and the Department of Justice. There is mention in the budget about the use of AI to reduce costs. There are no details on how it will be used in the federal administrative justice system.

Unless you have had your head in the sand, you have also been inundated with stories about the culling of birds at the ostrich farm in British Columbia. This week the Supreme Court denied leave to appeal. The media coverage of this story serves to highlight the lack of knowledge of journalists and the public on the role of judicial review and the Supreme Court leave to appeal process.

I don’t think many (any?) administrative law professionals thought that the Supreme Court would grant leave. To be granted leave, the case must raise a question of public importance. On its website, the Court gives some examples:

• it involves the interpretation of the Constitution or constitutional rights

• it requires the Court to resolve conflicting decisions from courts of appeal

• it raises a new issue of law

In an article on the CBC website, the reporter manages to muddy the waters with a suggestion that the Supreme Court’s decision in Vavilov somehow changed the outcome of the judicial review applications of the original CFIA decision on the cull:

The article starts with this bold statement:

In his battle for Canadian citizenship, Alexander Vavilov got an opportunity denied to the owners of B.C.’s Universal Ostrich Farms on Thursday — a chance to argue his case before Canada’s top court.

In the process, the son of Russian spies set a legal threshold for decision-making “reasonableness” that would doom the B.C. birds six years later.

I do not see how the outcome of the ostrich case would have been different if the Vavilov decision did not exist. The courts would still have looked at the reasonableness of the CFIA decision. However, more egregious in the reporting is a fundamental misunderstanding of the relevant factors in a leave to appeal to the Supreme Court. The reporter states:

The Supreme Court of Canada apparently saw nothing to suggest the decision to order a cull — or any of the decisions by the judges who later reviewed the CFIA’s ruling — were unreasonable.

Of course, the Supreme Court decided no such thing - it decided that the case was not of such public importance that it was worth using its scarce resources to determine if the decision was unreasonable.

By coincidence (I’m sure), the Wombats will be playing in Toronto tonight and tomorrow night at the Danforth Music Hall. I won’t be there, but I hope someone requests “The Ostrich Song”. Here they are with a live version recorded in 2009.

Evidence and confidentiality orders

A recent decision of the Nova Scotia Court of Appeal highlights the nature of the evidence required to obtain a confidentiality order (in this case, anonymization and a publication ban). The order was made by a lower court judge in an action alleging sexual assault and harassment, as well as negligence and breach of fiduciary duty. The alleged victim was seeking the use of initials (P.J.). Media was given notice of the application but no media attended the hearing.

The chambers judge who granted the initial confidentiality order relied on information provided by counsel for the alleged victim. The Court of Appeal highlighted that evidence:

[13] Before the chambers judge, the evidence relevant to the relief sought was confined to two paragraphs in counsel’s affidavit:

13. The Plaintiff expressed to me her concern that her identity be protected during this proceeding by using a pseudonym, “P.J.”, her initials, in place of her name on all court documents and during legal proceedings.

14. The Plaintiff’s employment opportunities and/or personal relationships in her community could be negatively impacted if this order for confidentiality is not granted.

(Emphasis added)

In addition, P.J.’s written submission to the chambers judge stated that she had “suffered emotional and psychological trauma” from the sexual assault and was “very concerned” revealing her identity “could have a negative impact on her private and social relationships”. In submissions on appeal, P.J. continued to cite the affidavit evidence in support of the argument that publication “would cause irreparable psychological and emotional harm, exacerbate trauma, and discourage her meaningful participation in the litigation”.

The Court of Appeal noted that “at best” the evidence only established a concern about the potential negative impact on P.J.

The chambers judge issued an oral ruling that reads in its entirety:

The Court: … So having reviewed that, as well as the case law that’s contained within the brief that you filed, specifically the reference in M.H.B. v. A.B., 2016 NSSC 137 and the considerations there. Of course we’re always guided by the open court principle. I have considered the interests of the plaintiff in the context of the litigation and the allegations that are put forward. I’ve considered your affidavit in which you’ve outlined the negative impacts upon the plaintiff in the event that this matter were not [sic] to proceed in the absence of a pseudonym and I’m satisfied to issue an order for confidentiality for the plaintiff, P.J., in this matter.

The Court of Appeal noted that the chambers judge was not referred to the leading Supreme Court of Canada decision on the open court principle in Sherman Estate, 2021 SCC 25. The Court of Appeal noted that Sherman Estate established a new analysis requiring:

…an applicant to demonstrate an open court presents a serious risk to a competing public interest. It recognizes a public interest in the protection of sensitive information – related to the core identity of the individual – the dissemination of which could amount to an affront to the dignity of the person involved. In order to obtain an exceptional order limiting access, applicants must establish this dignity dimension of their privacy is at serious risk. Courts have recognized such a risk may exist in the dissemination of information involving sexual assault or harassment. Beyond this threshold requirement, both necessity and proportionality must be addressed. …

The court noted that none of the analytical steps from Sherman Estate were identified or addressed. The court concluded that the affidavit from P.J.’s counsel was speculative and insufficient to support a confidentiality order.

The court also set out a caution about counsel swearing facts on the merits in an affidavit, adopting the caution set out in A.B. v. United Kingdom (Attorney General), 2019 NSSC 289:

[31] The practice of a solicitor making an affidavit that swears facts going to the merits of the motion must be avoided as, invariably, it leads to counsel arguing the case on the basis of their own affidavit. Although, in the present case, a Solicitor’s Affidavit was filed, cross-examination was not requested and Mr. Dull did not argue the motion. Regardless, Solicitors’ Affidavits should be limited to purely procedural content and should not contain assertions of facts that may be in issue. Clearly, an affidavit from the Plaintiff is preferred where there are factual assertions of the Plaintiff being advanced.

Lessons for tribunals