Applicant's Record (september 30, 2014)

Applicant's Record of Dr. Lukács in the application for judicial review, containing: affidavit in support; transcript; factum; and authorities.

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Court File No.: A-218-14 FEDERAL COURT OF APPEAL BETWEEN: DR. GÁBOR LUKÁCS Applicant – and – CANADIAN TRANSPORTATION AGENCY Respondent (Application under section 28 of the Federal Courts Act, R.S.C. 1985, c. F-7) APPLICANT’S RECORD VOLUME 1 Dated: September 30, 2014 DR. GÁBOR LUKÁCS Halifax, NS [email protected] Applicant TO: CANADIAN TRANSPORTATION AGENCY 15 Eddy Street Gatineau, QC J8X 4B3 Odette Lalumière Tel: (819) 994 2226 Fax: (819) 953 9269 Solicitor for the Respondent, Canadian Transportation Agency TABLE OF CONTENTS OF VOLUME 1 1 Notice of Application 1 2 Afﬁdavit of Dr. Gábor Lukács, afﬁrmed on April 25, 2014 13 A Email of Dr. Lukács to the Agency, dated February 14, 2014 18 B Follow-up email of Dr. Lukács to the Agency, dated February 17, 2014 20 C Email of Ms. Odette Lalumiere, Senior Counsel of the Agency, to Dr. Lukács, dated February 17, 2014 22 D Follow-up email of Dr. Lukács to the Agency, dated February 21, 2014 24 E Email of Ms. Lalumiere to Dr. Lukács, dated February 24, 2014 27 F Email of Dr. Lukács to Ms. Lalumiere, dated February 24, 2014 30 G Email of Ms. Patrice Bellerose to Dr. Lukács, dated February 24, 2014 33 H Email of Dr. Lukács to Ms. Bellerose, dated February 24, 2014 37 I Email of Ms. Bellerose to Dr. Lukács, including attachment (“Redacted File”), dated March 19, 2014 41 J Letter of Dr. Lukács to the Agency, dated March 24, 2014 164 K Letter of Mr. Geoffrey C. Hare, Chair and Chief Executive Ofﬁcer of the Agency, to Dr. Lukács, dated March 26, 2014 167 3 Transcript of cross-examination of Ms. Patrice Bellerose on her afﬁdavit sworn on July 29, 2014 170 4 Memorandum of Fact and Law of the Applicant 198 PART I STATEMENT OF FACTS 198 A. Overview 198 B. Background: the Agency and the open court principle 199 C. The Agency’s practice with respect to viewing tribunal ﬁles 200 D. The Applicant’s request to view a tribunal ﬁle 201 PART II STATEMENT OF THE POINTS IN ISSUE 205 PART III STATEMENT OF SUBMISSIONS 206 A. Standard of review: correctness 207 B. Open court principle and s. 2(b) of the Charter 207 C. Tribunal ﬁles fall within the exclusions and/or the exceptions to the Privacy Act 214 D. Inapplicability of the Privacy Act: the Oakes test 217 E. Remedies 218 F. Costs 222 PART IV ORDER SOUGHT 223 PART V LIST OF AUTHORITIES 225 APPENDIX “A” – STATUTES AND REGULATIONS 230 Canadian Charter of Rights and Freedoms 231 — sections 1 and 2 231 — subsection 24(1) 233 Canada Transportation Act, S.C. 1996, c. 10, sections 1-41 235 — section 7 239 — sections 17 and 19 242 Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), S.O.R./2014-104 247 — subsection 7(2) 248 — subsection 18(1) 249 — section 19 250 — subsection 31(2) 251 — Schedule 5 254 — Schedule 6 255 Canadian Transportation Agency General Rules, S.O.R./2005-35 256 — subsection 23(1) 257 — subsection 23(6) 259 — section 40 262 Federal Courts Act, R.S.C. 1985, c. F-7 263 — section 18 264 — section 18.1 265 — section 28 267 — paragraph 28(1)(k) 268 — subsection 28(2) 269 Federal Courts Rules, S.O.R./98-106 270 — Rule 81(1) 271 Privacy Act, R.S.C. 1985, c. P-21 272 — paragraphs 8(2)(a) and 8(2)(b) 273 — subparagraph 8(2)(m)(i) (English) 274 — subparagraph 8(2)(m)(i) (French) 275 — subsection 69(2) 277 Court File No.: FEDERAL COURT OF APPEAL BETWEEN: DR. GÁBOR LUKÁCS Applicant – and – CANADIAN TRANSPORTATION AGENCY Respondent NOTICE OF APPLICATION TO THE RESPONDENT: A PROCEEDING HAS BEEN COMMENCED by the Applicant. The relief claimed by the Applicant appears on the following page. THIS APPLICATION will be heard by the Court at a time and place to be ﬁxed by the Judicial Administrator. Unless the Court orders otherwise, the place of hearing will be as requested by the Applicant. The Applicant requests that this application be heard at the Federal Court of Appeal in Halifax, Nova Scotia. IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or a solicitor acting for you must prepare a notice of appearance in Form 305 prescribed by the Federal Courts Rules and serve it on the Applicant’s solicitor, or where the applicant is self-represented, on the Applicant, WITHIN 10 DAYS after being served with this notice of application. Copies of the Federal Courts Rules, information concerning the local ofﬁces of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local ofﬁce. 1 - 2 - IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. Date: April 22, 2014 Issued by: Address of local ofﬁce: Federal Court of Appeal 1801 Hollis Street Halifax, Nova Scotia TO: CANADIAN TRANSPORTATION AGENCY 15 Eddy Street Gatineau, Quebec J8X 4B3 Ms. Cathy Murphy, Secretary Tel: 819-997-0099 Fax: 819-953-5253 2 - 3 - APPLICATION This is an application for judicial review in respect of: (a) the practices of the Canadian Transportation Agency (“Agency”) related to the rights of the public, pursuant to the open-court principle, to view information provided in the course of adjudicative proceedings; and (b) the refusal of the Agency to allow the Applicant to view unredacted doc- uments in File No. M4120-3/13-05726 of the Agency, even though no conﬁdentiality order has been sought or made in that ﬁle. The Applicant makes application for: 1. a declaration that adjudicative proceedings before the Canadian Trans- portation Agency are subject to the constitutionally protected open-court principle; 2. a declaration that all information, including but not limited to documents and submissions, provided to the Canadian Transportation Agency in the course of adjudicative proceedings are part of the public record in their entirety, unless conﬁdentiality was sought and granted in accordance with the Agency’s General Rules; 3. a declaration that members of the public are entitled to view all informa- tion, including but not limited to documents and submissions, provided to the Canadian Transportation Agency in the course of adjudicative pro- ceedings, unless conﬁdentiality was sought and granted in accordance with the Agency’s General Rules; 4. a declaration that information provided to the Canadian Transportation Agency in the course of adjudicative proceedings fall within the excep- tions of subsections 69(2) and/or 8(2)(a) and/or 8(2)(b) and/or 8(2)(m) of the Privacy Act, R.S.C. 1985, c. P-21; 3 - 4 - 5. in the alternative, a declaration that provisions of the Privacy Act, R.S.C. 1985, c. P-21 are inapplicable with respect to information, including but not limited to documents and submissions, provided to the Canadian Transportation Agency in the course of adjudicative proceedings to the extent that these provisions limit the rights of the public to view such in- formation pursuant to subsection 2(b) of the Canadian Charter of Rights and Freedoms; 6. a declaration that the power to determine questions related to conﬁden- tiality of information provided in the course of adjudicative proceedings before the Canadian Transportation Agency is reserved to Members of the Agency, and cannot be delegated to Agency Staff; 7. an order of a mandamus, directing the Canadian Transportation Agency to provide the Applicant with unredacted copies of the documents in File No. M4120-3/13-05726, or otherwise allow the Applicant and/or others on his behalf to view unredacted copies of these documents; 8. costs and/or reasonable out-of-pocket expenses of this application; 9. such further and other relief or directions as the Applicant may request and this Honourable Court deems just. The grounds for the application are as follows: 1. The Canadian Transportation Agency (“Agency”), established by the Canada Transportation Act, S.C. 1996, c. 10 (“CTA”), has a broad man- date in respect of all transportation matters under the legislative author- ity of Parliament. The Agency performs two key functions: (a) as a quasi-judicial tribunal, the Agency resolves commercial and consumer transportation-related disputes; and (b) as an economic regulator, the Agency makes determinations and issues licenses and permits to carriers which function within the ambit of Parliament’s authority. 4 - 5 - 2. The present application challenges the failure of the Agency to comply, in practice, with the open-court principle and/or its own General Rules and/or Privacy Statement with respect to the open-court principle in the context of the right of the public to view information, including but not limited to documents and submissions, provided to the Agency in the course of adjudicative proceedings. A. The Agency’s General Rules 3. The Canadian Transportation Agency General Rules, S.O.R./2005-35, contain detailed provisions implementing the open-court principle, and provide for procedures for claiming conﬁdentiality: 23. (1) The Agency shall place on its public record any document ﬁled with it in respect of any proceeding unless the person ﬁling the document makes a claim for its conﬁ- dentiality in accordance with this section. 23. (5) A person making a claim for conﬁdentiality shall indicate (a) the reasons for the claim, including, if any speciﬁc direct harm is asserted, the nature and extent of the harm that would likely result to the person mak- ing the claim for conﬁdentiality if the document were disclosed; and (b) whether the person objects to having a version of the document from which the conﬁdential informa- tion has been removed placed on the public record and, if so, shall state the reasons for objecting. 23. (6) A claim for conﬁdentiality shall be placed on the public record and a copy shall be provided, on request, to any person. 24. (2) The Agency shall place a document in respect of which a claim for conﬁdentiality has been made on the public record if the document is relevant to the proceed- ing and no speciﬁc direct harm would likely result from its disclosure or any demonstrated speciﬁc direct harm is not sufﬁcient to outweigh the public interest in having it dis- closed. 5 - 6 - 24. (4) If the Agency determines that a document in re- spect of which a claim for conﬁdentiality has been made is relevant to a proceeding and the speciﬁc direct harm likely to result from its disclosure justiﬁes a claim for conﬁden- tiality, the Agency may (a) order that the document not be placed on the public record but that it be maintained in conﬁdence; (b) order that a version or a part of the document from which the conﬁdential information has been removed be placed on the public record; (c) order that the document be disclosed at a hearing to be conducted in private; (d) order that the document or any part of it be provided to the parties to the proceeding, or only to their so- licitors, and that the document not be placed on the public record; or (e) make any other order that it considers appropriate. B. The Agency’s Privacy Statement 4. The Agency’s Privacy Statement states, among other things, that: Open Court Principle As a quasi-judicial tribunal operating like a court, the Cana- dian Transportation Agency is bound by the constitutionally protected open-court principle. This principle guarantees the public’s right to know how justice is administered and to have access to decisions rendered by administrative tri- bunals. Pursuant to the General Rules, all information ﬁled with the Agency becomes part of the public record and may be made available for public viewing. 5. A copy of the Agency’s Privacy Statement is provided to parties at the commencement of adjudicative proceedings. 6 - 7 - C. The Agency’s practice 6. On February 14, 2014, the Applicant learned about Decision No. 55-C- A-2014 that the Agency made in File No. M4120-3/13-05726. 7. On February 14, 2014, the Applicant sent an email to the Agency with the subject line “Request to view ﬁle no. M4120-3/13-05726 pursuant to s. 2(b) of the Charter” and the email stated: I would like to view the public documents in ﬁle no. M4120- 3/13-05726. Due the public interest in the case, in which a ﬁnal decision has been released today, the present request is urgent. 8. On February 17, 2014, the Applicant wrote to the Agency to follow up on his request. 9. On February 17, 2014, Ms. Odette Lalumiere, Senior Counsel of the Agency, advised the Applicant that “Your request is being processed by Ms Bellerose’s group.” 10. On February 21 2014, the Applicant wrote to the Agency to follow up again on his request. 11. On February 24, 2014, Ms. Lalumiere wrote to the Applicant again that “your request is being processed by Ms. Bellerose’s group.” Ms. Patrice Bellerose is the “Information Services, Shared Services Projects & ATIP Coordinator” of the Agency. 12. On March 19, 2014, after multiple email exchanges, Ms. Bellerose sent an email to the Applicant stating: Please ﬁnd attached copies of records in response to your “request to view ﬁle 4120-3/13-05726”. The email had as an attachment a PDF ﬁle called “AI-2013-00081.PDF” that consisted of 121 numbered pages, and pages 1, 27-39, 41, 45, 53- 56, 62-64, 66, 68-77, 81-87, 89, 90-113, and 115 were partially redacted (“Redacted File”). 7 - 8 - 13. The Redacted File contained no claim for conﬁdentiality as stipulated by section 23 of the Agency’s General Rules, nor any decision by the Agency directing that certain documents or portions thereof be treated as conﬁdential. 14. Information that was redacted from the Redacted File included, among other things: (a) name and/or work email address of counsel acting for Air Canada in the proceeding (e.g., pages 1, 27, 28, 36, 37, 45, 72, 75); (b) names of Air Canada employees involved (e.g., pages 29, 31, 62, 64, 84, 87, 90, 92); and (c) substantial portions of submissions and evidence (e.g., pages 41, 54-56, 63, 68-70, 85, 94, 96, 100-112). 15. On March 24, 2014, the Applicant made a written demand to the Agency to be provided with unredacted copies of all documents in File No. M4120-3/13-05726 with respect to which no conﬁdentiality order was made by a Member of the Agency. 16. On March 26, 2014, Mr. Geoffrey C. Hare, hair and Chief Executive Of- ﬁcer of the Agency, wrote to the Applicant, among other things, that: The Canadian Transportation Agency (Agency) is a gov- ernment institution which was included in the schedule to the Privacy Act (Act) in 1982. [...] [...] Section 8 of the Act is clear that, except for speciﬁc ex- ceptions found in that section, personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by that institution. [...] Although Agency case ﬁles are available to the public for consultation in accordance with the open court principle, personal information contained in the ﬁles such as an indi- vidual’s home address, personal email address, personal phone number, date of birth, ﬁnancial details, social in- 8 - 9 - surance number, driver’s license number, or credit card or passport details, is not available for consultation. The ﬁle you requested has such sensitive personal infor- mation and it has therefore been removed by the Agency as it required under the Act. 17. Even if the aforementioned interpretation of the Privacy Act were correct, which is explicitly denied, it does not explain the sweeping redactions in the Redacted File, which go beyond the types of information mentioned in Mr. Hare’s letter. D. The open-court principle 18. Long before the Charter, the doctrine of open court had been well es- tablished at common law. In Scott v. Scott, [1913] A.C. 419 (H.L.), Lord Shaw held that “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.” On the same theme, Justice Brandeis of the American Supreme Court has famously remarked that “Sunlight is the best disinfectant.” 19. Openness of proceedings is the rule, and covertness is the exception; sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings (A.G. (Nova Scotia) v. MacIntyre, [1982] 1 SCR 175, at p. 185). The open court principle has been described as a “hallmark of a democratic society” and is inextricably tied to freedom of expression guaranteed by s. 2(b) of the Charter (CBC v. New Brunswick (Attorney General), [1996] 3 SCR 480, paras. 22-23). 20. Since the adoption of the Charter, it is true that the open door doctrine has been applied to certain administrative tribunals. While the bulk of precedents have been in the context of court proceedings, there has been an extension in the application of the doctrine to those proceedings where tribunals exercise quasi-judicial functions, which is to say that, by statute, they have the jurisdiction to determine the rights and duties of the parties before them. 9 - 10 - 21. The open court principle also applies to quasi-judicial proceedings be- fore tribunals (Germain v. Automobile Injury Appeal Commission, 2009 SKQB 106, para. 104). 22. Adjudicative proceedings before the Agency are quasi-judicial proceed- ings, because the Canada Transportation Act confers upon the Agency the jurisdiction to determine the rights and duties of the parties. Thus, the open-court principle applies to such proceedings before the Agency. 23. The Agency itself has recognized that it is bound by the open-court prin- ciple (Tanenbaum v. Air Canada, Decision No. 219-A-2009). Sections 23-24 of the Agency’s General Rules reﬂect this principle: documents provided to the Agency are public, unless the person ﬁling leads evi- dence and arguments that meet the test for granting a conﬁdentiality order. Such determinations are made in accordance with the principles set out in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41. 24. Thus, the open-court principle dictates that all documents in an adju- dicative ﬁle of the Agency must be made available for public viewing, unless the Agency made a decision during the proceeding that certain documents or portions thereof be treated conﬁdentially. Public viewing of documents is particularly important in ﬁles that have been heard in writing, without an oral hearing. E. The Privacy Act does not trump the open-court principle 25. There can be many privacy-related considerations to granting a con- ﬁdentiality order, such as protection of the innocent or protection of a vulnerable party to ensure access to justice (A.B. v. Bragg Communi- cations Inc., 2012 SCC 46); however, privacy of the parties in and on its own does not trump the open-court principle (A.G. (Nova Scotia) v. MacIntyre, [1982] 1 SCR 175, at p. 185). 26. The Privacy Act cannot override the constitutional principles that are in- terwoven into the open court principle (El-Helou v. Courts Administration Service, 2012 CanLII 30713 (CA PSDPT), paras. 67-80). 10 - 11 - 27. Due to the open court principle as well as section 23(1) of the Agency’s General Rules, personal information that the Agency received as part of its quasi-judicial functions, is publicly available. 28. Under subsection 69(2) of the Privacy Act, sections 7 and 8 do not apply to personal information that is publicly available. Therefore, personal in- formation that is properly before the Agency in its quasi-judicial functions is not subject to the restrictions of the Privacy Act. 29. In the alternative, if section 8 of the Privacy Act does apply, then per- sonal information that was provided to the Agency in the course of an adjudicative proceeding may be disclosed pursuant to the exceptions set out in subsections 8(2)(a) and/or 8(2)(b) and/or 8(2)(m) of the Pri- vacy Act (El-Helou v. Courts Administration Service, 2012 CanLII 30713 (CA PSDPT), paras. 67-80). 30. In the alternative, if the Privacy Act does purport to limit the rights of the public to view information provided to the Agency in the course of adju- dicative proceedings, then such limitation is inconsistent with subsection 2(b) of the Canadian Charter of Right and Freedoms, and it ought to be read down so as not to be applicable to such information. F. Authority to determine what to redact 31. According to section 7(2) of the CTA, the Agency consists of permanent and temporary Members appointed in accordance with the CTA. Only these Members may exercise the quasi-judicial powers of the Agency, and the Act contains no provisions that would allow delegation of these powers. 32. Determination of conﬁdentiality of documents provided in the course of an adjudicative proceeding before the Agency, including which portions ought to be redacted, falls squarely within the Agency’s quasi-judicial functions. Consequently, these powers can only be exercised by Mem- bers of the Agency, and cannot be delegated to Agency Staff, as hap- pened with the Applicant’s request in the present case. 11 - 12 - G. Statutory provisions 33. The Applicant will also rely on the following statutory provisions: (a) Canadian Charter of Rights and Freedoms, and in particular, sub- section 2(b) and section 24(1); (b) Canada Transportation Act, S.C. 1996, c. 10; (c) Canadian Transportation Agency General Rules, S.O.R./2005-35, and in particular, sections 23 and 24; (d) Federal Courts Act, R.S.C. 1985, c. F-7, and in particular, sec- tions 18.1 and 28; and (e) Federal Court Rules, S.O.R./98-106, and in particular, Rule 300. 34. Such further and other grounds as the Applicant may advise and this Honourable Court permits. This application will be supported by the following material: 1. Afﬁdavit of Dr. Gábor Lukács, to be served. 2. Such further and additional materials as the Applicant may advise and this Honourable Court may allow. April 22, 2014 DR. GÁBOR LUKÁCS Halifax, Nova Scotia [email protected] Applicant 12 13 Court File No.: A-218-14 FEDERAL COURT OF APPEAL BETWEEN: DR. GÁBOR LUKÁCS Applicant – and – CANADIAN TRANSPORTATION AGENCY Respondent AFFIDAVIT OF DR. GÁBOR LUKÁCS (Afﬁrmed: April 25, 2014) I, Dr. Gábor Lukács, of the City of Halifax in the Regional Municipality of Halifax, in the Province of Nova Scotia, AFFIRM THAT: 1. I am a Canadian citizen, a frequent traveller, and an air passenger rights advocate. My activities in the latter capacity include: (a) ﬁling approximately two dozen successful regulatory complaints with the Canadian Transportation Agency (the “Agency”), result- ing in airlines being ordered to implement policies that reﬂect the legal principles of the Montreal Convention or otherwise offer bet- ter protection to passengers; (b) promoting air passenger rights through the press and social me- dia; and (c) referring passengers mistreated by airlines to legal information and resources. 14 2. On September 4, 2013, the Consumers’ Association of Canada recog- nized my achievements in the area of air passenger rights by awarding me its Order of Merit for “singlehandedly initiating Legal Action resulting in revision of Air Canada unfair practices regarding Over Booking.” 3. On February 14, 2014, I learned about Decision No. 55-C-A-2014 that the Canadian Transportation Agency (“Agency”) made in File No. M4120- 3/13-05726. Later that day, I sent an email to the Agency with the subject line “Request to viewﬁle no. M4120-3/13-05726 pursuant to s. 2(b) of the Charter” and the email stated: I would like to view the public documents in ﬁle no. M4120- 3/13-05726. Due the public interest in the case, in which a ﬁnal decision has been released today, the present request is urgent. A copy of my email, dated February 14, 2014, is attached and marked as Exhibit “A”. 4. Since I received no answer to my request, on February 17, 2014, I sent a follow-up email to the Agency, a copy of which is attached and marked as Exhibit “B”. 5. On February 17, 2014, Ms. Odette Lalumiere, Senior Counsel of the Agency, advised me by email that “Your request is being processed by Ms Bellerose’s group.” A copy of Ms. Lalumiere’s email, dated February 17, 2014, is attached and marked as Exhibit “C”. 6. On February 21, 2014, I sent a second follow-up email to the Agency, a copy of which is attached and marked as Exhibit “D”. 15 7. On February 24, 2014, Ms. Lalumiere wrote me again that “your request is being processed by Ms. Bellerose’s group.” A copy of Ms. Lalumiere’s email, dated February 24, 2014, is attached and marked as Exhibit “E”. 8. On February 24, 2014, I expressed concern to Ms. Lalumiere about the delay related to my request. A copy of my email to Ms. Lalumiere, dated February 24, 2014, is attached and marked as Exhibit “F”. 9. On February 24, 2014, Ms. Patrice Bellerose, the “Information Services, Shared Services Projects & ATIP Coordinator” of the Agency, advised me that: As previously mentioned we are working on your requests. We have multiple priorities and I have noted the urgency on the request. We will provide you with the public records as soon as we can. [Emphasis added.] A copy of Ms. Bellerose’s email, dated February 24, 2014, is attached and marked as Exhibit “G”. 10. On February 24, 2014, I wrote to Ms. Bellerose to express concern over the notion of “processing” a request to view a public ﬁle: With due respect, I fail to see why scanning documents in a public ﬁle would require massive resources or anything but a few minutes to put into a scanner. I do remain profoundly concerned that you are usurping the authority of Members of the Agency to decide what documents or portions of documents are public, and that you are unlawfully engaging in withholding public docu- ments, in violation of my rights under s. 2(b) of Charter. A copy of my email to Ms. Bellerose, dated February 24, 2014, is at- tached and marked as Exhibit “H”. 16 11. On March 19, 2014, Ms. Bellerose sent me an email stating: Please ﬁnd attached copies of records in response to your “request to view ﬁle 4120-3/13-05726”. The email had as an attachment a PDF ﬁle called “AI-2013-00081.PDF” that consisted of 121 numbered pages. A copy of Ms. Bellerose’s email, dated March 19, 2014, including its attachment, is attached and marked as Exhibit “I”. 12. On March 24, 2014, I made a written demand to the Agency to be provided with unredacted copies of all documents in File No. M4120- 3/13-05726 with respect to which no conﬁdentiality order was made by a Member of the Agency. A copy of my March 24, 2014 letter is attached and marked as Exhibit “J”. 13. On March 26, 2014, Mr. Geoffrey C. Hare, Chair and Chief Executive Ofﬁcer of the Agency, wrote to me, among other things, that: The Canadian Transportation Agency (Agency) is a gov- ernment institution which was included in the schedule to the Privacy Act (Act) in 1982. [...] [...] Section 8 of the Act is clear that, except for speciﬁc ex- ceptions found in that section, personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by that institution. [...] Although Agency case ﬁles are available to the public for consultation in accordance with the open court principle, personal information contained in the ﬁles such as an indi- vidual’s home address, personal email address, personal phone number, date of birth, ﬁnancial details, social in- surance number, driver’s license number, or credit card or passport details, is not available for consultation. 17 The ﬁle you requested has such sensitive personal infor- mation and it has therefore been removed by the Agency as it required under the Act. A copy of Mr. Hare’s letter, dated March 26, 2014, is attached and marked as Exhibit “K”. AFFIRMED before me at the City of Halifax in the Regional Municipality of Halifax on April 25, 2014. Dr. Gábor Lukács Halifax, NS [email protected] 18 This is Exhibit “A” to the Afﬁdavit of Dr. Gábor Lukacs afﬁrmed before me on April 25, 2014 Signature From [email protected] Fri Feb 14 16:26:02 2014 Date: Fri, 14 Feb 2014 16:25:59 -0400 (AST) From: Gabor Lukacs To: [email protected] Cc: Patrice Bellerose , Odette Lalumiere Subject: Request to view file no. M4120-3/13-05726 pursuant to s. 2(b) of the Charter Dear Madam Secretary, I would like to view the public documents in file no. M4120-3/13-05726. Due the public interest in the case, in which a final decision has been released today, the present request is urgent. Sincerely yours, Dr. Gabor Lukacs 19 20 This is Exhibit “B” to the Afﬁdavit of Dr. Gábor Lukacs afﬁrmed before me on April 25, 2014 Signature From [email protected] Mon Feb 17 17:08:22 2014 Date: Mon, 17 Feb 2014 17:08:19 -0400 (AST) From: Gabor Lukacs To: [email protected] Cc: Patrice Bellerose , Odette Lalumiere Subject: Re: Request to view file no. M4120-3/13-05726 pursuant to s. 2(b) of the Cha rter Dear Madam Secretary, I am writing to follow-up on the matter below, which may be of some public interest, and as such delay in your response may interfere with my rights under s. 2(b) of the Charter. I look forward to hearing from you. Sincerely yours, Dr. Gabor Lukacs On Fri, 14 Feb 2014, Gabor Lukacs wrote: > Dear Madam Secretary, > > I would like to view the public documents in file no. M4120-3/13-05726. > > Due the public interest in the case, in which a final decision has been > released today, the present request is urgent. > > Sincerely yours, > Dr. Gabor Lukacs > 21 22 This is Exhibit “C” to the Afﬁdavit of Dr. Gábor Lukacs afﬁrmed before me on April 25, 2014 Signature From [email protected] Mon Feb 17 17:36:26 2014 Date: Mon, 17 Feb 2014 16:35:51 -0500 From: Odette Lalumiere To: [email protected], secretaire-secretary Cc: Patrice Bellerose Subject: Re: Request to view file no. M4120-3/13-05726 pursuant to s. 2 (b) ofthe Cha rter Mr Lukacs Your request is being processed by Ms Bellerose’s group. Odette Lalumi??re From: Gabor Lukacs Sent: Monday, February 17, 2014 4:07 PM To: secretaire-secretary Cc: Odette Lalumiere; Patrice Bellerose Subject: Re: Request to view file no. M4120-3/13-05726 pursuant to s. 2(b) of the Charter Dear Madam Secretary, I am writing to follow-up on the matter below, which may be of some public interest, and as such delay in your response may interfere with my rights under s. 2(b) of the Charter. I look forward to hearing from you. Sincerely yours, Dr. Gabor Lukacs On Fri, 14 Feb 2014, Gabor Lukacs wrote: > Dear Madam Secretary, > > I would like to view the public documents in file no. M4120-3/13-05726. > > Due the public interest in the case, in which a final decision has been > released today, the present request is urgent. > > Sincerely yours, > Dr. Gabor Lukacs > 23 24 This is Exhibit “D” to the Afﬁdavit of Dr. Gábor Lukacs afﬁrmed before me on April 25, 2014 Signature From [email protected] Fri Feb 21 14:19:58 2014 Date: Fri, 21 Feb 2014 14:19:55 -0400 (AST) From: Gabor Lukacs To: Odette Lalumiere Cc: secretaire-secretary , Patrice Bellerose Subject: Re: Request to view file no. M4120-3/13-05726 pursuant to s. 2 (b) of the Ch arter Dear Ms. Lalumiere and Ms. Bellerose, I am writing to follow up on the request below. I am profoundly concerned about what transpires as the Agency attempting to frustrate my rights pursuant to s. 2(b) of the Charter. Yours very truly, Dr. Gabor Lukacs On Mon, 17 Feb 2014, Odette Lalumiere wrote: > Mr Lukacs > Your request is being processed by Ms Bellerose’s group. > > Odette Lalumi??re > > > > From: Gabor Lukacs > Sent: Monday, February 17, 2014 4:07 PM > To: secretaire-secretary > Cc: Odette Lalumiere; Patrice Bellerose > Subject: Re: Request to view file no. M4120-3/13-05726 pursuant to s. 2(b) > of the Charter > > Dear Madam Secretary, > > I am writing to follow-up on the matter below, which may be of some public > interest, and as such delay in your response may interfere with my rights > under s. 2(b) of the Charter. > > I look forward to hearing from you. > > Sincerely yours, > Dr. Gabor Lukacs > > > On Fri, 14 Feb 2014, Gabor Lukacs wrote: > > > Dear Madam Secretary, > > > > I would like to view the public documents in file no. M4120-3/13-05726. > > > > Due the public interest in the case, in which a final decision has been > > released today, the present request is urgent. > > > > Sincerely yours, > > Dr. Gabor Lukacs > > > 25 > 26 27 This is Exhibit “E” to the Afﬁdavit of Dr. Gábor Lukacs afﬁrmed before me on April 25, 2014 Signature From [email protected] Mon Feb 24 12:44:14 2014 Date: Mon, 24 Feb 2014 11:44:01 -0500 From: Odette Lalumiere To: Gabor Lukacs Cc: Patrice Bellerose , secretaire-secretary secreta ire-secretary Subject: Re: Request to view file no. M4120-3/13-05726 pursuant to s. 2 (b) of the Ch arter [ The following text is in the "Windows-1252" character set. ] [ Your display is set for the "ISO-8859-1" character set. ] [ Some characters may be displayed incorrectly. ] Mr. Lukacs, As indicated in my e-mail of February 17, 2014, your request is being processed by Ms. Bellerose’s group. Odette Lalumière Avocate principale/Senior Counsel Direction des services juridiques/Legal Services Directorate Office des transports du Canada/Canadian Transportation Agency Tél./Tel.: 819 994-2226 [email protected] >>> Gabor Lukacs 21/02/2014 1:19 PM >>> Dear Ms. Lalumiere and Ms. Bellerose, I am writing to follow up on the request below. I am profoundly concerned about what transpires as the Agency attempting to frustrate my rights pursuant to s. 2(b) of the Charter. Yours very truly, Dr. Gabor Lukacs On Mon, 17 Feb 2014, Odette Lalumiere wrote: > Mr Lukacs > Your request is being processed by Ms Bellerose’s group. > > Odette Lalumi??re > > > > From: Gabor Lukacs > Sent: Monday, February 17, 2014 4:07 PM > To: secretaire-secretary > Cc: Odette Lalumiere; Patrice Bellerose > Subject: Re: Request to view file no. M4120-3/13-05726 pursuant to s. 2(b) > of the Charter > > Dear Madam Secretary, > > I am writing to follow-up on the matter below, which may be of some 28 public > interest, and as such delay in your response may interfere with my rights > under s. 2(b) of the Charter. > > I look forward to hearing from you. > > Sincerely yours, > Dr. Gabor Lukacs > > > On Fri, 14 Feb 2014, Gabor Lukacs wrote: > > > Dear Madam Secretary, > > > > I would like to view the public documents in file no. M4120-3/13-05726. > > > > Due the public interest in the case, in which a final decision has been > > released today, the present request is urgent. > > > > Sincerely yours, > > Dr. Gabor Lukacs > > > > 29 30 This is Exhibit “F” to the Afﬁdavit of Dr. Gábor Lukacs afﬁrmed before me on April 25, 2014 Signature From [email protected] Mon Feb 24 12:57:22 2014 Date: Mon, 24 Feb 2014 12:57:20 -0400 (AST) From: Gabor Lukacs To: Odette Lalumiere Cc: Patrice Bellerose , secretaire-secretary secreta ire-secretary Subject: Re: Request to view file no. M4120-3/13-05726 pursuant to s. 2 (b) of the Ch arter [ The following text is in the "Windows-1252" character set. ] [ Your display is set for the "ISO-8859-1" character set. ] [ Some characters may be displayed incorrectly. ] Ms. Lalumiere, Although you keep repeating that the request is being processed, I have received no communication from Ms. Bellerose with respect to my request, even though the request was made on February 14, 2014. With due respect, the obligation under s. 2(b) of the Charter is not met by the Agency by pointing at various employees or groups of employees. Thus, I reiterate my request that the Agency provide me with a reasonable opportunity to view file no. M4120-3/13-05726. Yours very truly, Dr. Gabor Lukacs On Mon, 24 Feb 2014, Odette Lalumiere wrote: > Mr. Lukacs, > As indicated in my e-mail of February 17, 2014, your request is being > processed by Ms. Bellerose’s group. > > > > Odette Lalumière > Avocate principale/Senior Counsel > Direction des services juridiques/Legal Services Directorate > Office des transports du Canada/Canadian Transportation Agency > Tél./Tel.: 819 994-2226 > > [email protected] > > >>>> Gabor Lukacs 21/02/2014 1:19 PM >>> > Dear Ms. Lalumiere and Ms. Bellerose, > > I am writing to follow up on the request below. I am profoundly > concerned > about what transpires as the Agency attempting to frustrate my rights > pursuant to s. 2(b) of the Charter. > > Yours very truly, > Dr. Gabor Lukacs > > > > 31 > On Mon, 17 Feb 2014, Odette Lalumiere wrote: > >> Mr Lukacs >> Your request is being processed by Ms Bellerose’s group. >> >> Odette Lalumi??re >> >> >> >> From: Gabor Lukacs >> Sent: Monday, February 17, 2014 4:07 PM >> To: secretaire-secretary >> Cc: Odette Lalumiere; Patrice Bellerose >> Subject: Re: Request to view file no. M4120-3/13-05726 pursuant to s. > 2(b) >> of the Charter >> >> Dear Madam Secretary, >> >> I am writing to follow-up on the matter below, which may be of some > public >> interest, and as such delay in your response may interfere with my > rights >> under s. 2(b) of the Charter. >> >> I look forward to hearing from you. >> >> Sincerely yours, >> Dr. Gabor Lukacs >> >> >> On Fri, 14 Feb 2014, Gabor Lukacs wrote: >> >>> Dear Madam Secretary, >>> >>> I would like to view the public documents in file no. > M4120-3/13-05726. >>> >>> Due the public interest in the case, in which a final decision has > been >>> released today, the present request is urgent. >>> >>> Sincerely yours, >>> Dr. Gabor Lukacs >>> >> >> > 32 33 This is Exhibit “G” to the Afﬁdavit of Dr. Gábor Lukacs afﬁrmed before me on April 25, 2014 Signature From [email protected] Mon Feb 24 13:47:16 2014 Date: Mon, 24 Feb 2014 12:46:55 -0500 From: Patrice Bellerose To: [email protected], Odette Lalumiere Cc: secretaire-secretary Subject: Re: Request to view file no. M4120-3/13-05726 pursuant to s. 2 (b) ofthe Cha rter [ The following text is in the "UTF-8" character set. ] [ Your display is set for the "ISO-8859-1" character set. ] [ Some characters may be displayed incorrectly. ] Hello Mr. Lukacs, As previously mentioned we are working on your requests. We have multiple priorities and I have noted the urgency on the request. We will provide you with the public records as soon as we can. Thank you. Patrice Bellerose From: Gabor Lukacs Sent: Monday, February 24, 2014 11:56 AM To: Odette Lalumiere Cc: Patrice Bellerose; secretaire-secretary Subject: Re: Request to view file no. M4120-3/13-05726 pursuant to s. 2 (b) of the Charter Ms. Lalumiere, Although you keep repeating that the request is being processed, I have received no communication from Ms. Bellerose with respect to my request, even though the request was made on February 14, 2014. With due respect, the obligation under s. 2(b) of the Charter is not met by the Agency by pointing at various employees or groups of employees. Thus, I reiterate my request that the Agency provide me with a reasonable opportunity to view file no. M4120-3/13-05726. Yours very truly, Dr. Gabor Lukacs On Mon, 24 Feb 2014, Odette Lalumiere wrote: > Mr. Lukacs, > As indicated in my e-mail of February 17, 2014, your request is being > processed by Ms. Bellerose’s group. > > > > Odette Lalumière > Avocate principale/Senior Counsel > Direction des services juridiques/Legal Services Directorate > Office des transports du Canada/Canadian Transportation Agency > Tél./Tel.: 819 994-2226 34 > > [email protected] > > >>>> Gabor Lukacs 21/02/2014 1:19 PM >>> > Dear Ms. Lalumiere and Ms. Bellerose, > > I am writing to follow up on the request below. I am profoundly > concerned > about what transpires as the Agency attempting to frustrate my rights > pursuant to s. 2(b) of the Charter. > > Yours very truly, > Dr. Gabor Lukacs > > > > > On Mon, 17 Feb 2014, Odette Lalumiere wrote: > >> Mr Lukacs >> Your request is being processed by Ms Bellerose’s group. >> >> Odette Lalumi??re >> >> >> >> From: Gabor Lukacs >> Sent: Monday, February 17, 2014 4:07 PM >> To: secretaire-secretary >> Cc: Odette Lalumiere; Patrice Bellerose >> Subject: Re: Request to view file no. M4120-3/13-05726 pursuant to s. > 2(b) >> of the Charter >> >> Dear Madam Secretary, >> >> I am writing to follow-up on the matter below, which may be of some > public >> interest, and as such delay in your response may interfere with my > rights >> under s. 2(b) of the Charter. >> >> I look forward to hearing from you. >> >> Sincerely yours, >> Dr. Gabor Lukacs >> >> >> On Fri, 14 Feb 2014, Gabor Lukacs wrote: >> >>> Dear Madam Secretary, >>> >>> I would like to view the public documents in file no. > M4120-3/13-05726. >>> >>> Due the public interest in the case, in which a final decision has > been >>> released today, the present request is urgent. >>> >>> Sincerely yours, >>> Dr. Gabor Lukacs 35 >>> >> >> > 36 37 This is Exhibit “H” to the Afﬁdavit of Dr. Gábor Lukacs afﬁrmed before me on April 25, 2014 Signature From [email protected] Mon Feb 24 17:22:24 2014 Date: Mon, 24 Feb 2014 17:22:20 -0400 (AST) From: Gabor Lukacs To: Patrice Bellerose Cc: Odette Lalumiere , secretaire-secretary Subject: Re: Request to view file no. M4120-3/13-05726 pursuant to s. 2 (b) ofthe Cha rter [ The following text is in the "UTF-8" character set. ] [ Your display is set for the "ISO-8859-1" character set. ] [ Some characters may be displayed incorrectly. ] Ms. Bellerose, Earlier, I asked you the following question, which you have not answer as of yet: > Can you please elaborate on what "processing" means in this context? > My understanding is that there is a public file, and thus all that needs > to be done is feed these documents into a scanner. With due respect, I fail to see why scanning documents in a public file would require massive resources or anything but a few minutes to put into a scanner. I do remain profoundly concerned that you are usurping the authority of Members of the Agency to decide what documents or portions of documents are public, and that you are unlawfully engaging in withholding public documents, in violation of my rights under s. 2(b) of Charter. I reiterate my request that you provide a clear explanation for the delay and the meaning of "processing" in this context. Sincerely yours, Dr. Gabor Lukacs On Mon, 24 Feb 2014, Patrice Bellerose wrote: > Hello Mr. Lukacs, > As previously mentioned we are working on your requests. We have multiple > priorities and I have noted the urgency on the request. We will provide you > with the public records as soon as we can. > Thank you. > Patrice Bellerose > > > > > > > From: Gabor Lukacs > Sent: Monday, February 24, 2014 11:56 AM > To: Odette Lalumiere > Cc: Patrice Bellerose; secretaire-secretary > Subject: Re: Request to view file no. M4120-3/13-05726 pursuant to s. 2 (b) > of the Charter > > Ms. Lalumiere, 38 > > Although you keep repeating that the request is being processed, I have > received no communication from Ms. Bellerose with respect to my request, > even though the request was made on February 14, 2014. > > With due respect, the obligation under s. 2(b) of the Charter is not met > by the Agency by pointing at various employees or groups of employees. > > Thus, I reiterate my request that the Agency provide me with a reasonable > opportunity to view file no. M4120-3/13-05726. > > Yours very truly, > Dr. Gabor Lukacs > > > > > On Mon, 24 Feb 2014, Odette Lalumiere wrote: > > > Mr. Lukacs, > > As indicated in my e-mail of February 17, 2014, your request is being > > processed by Ms. Bellerose’s group. > > > > > > > > Odette Lalumière > > Avocate principale/Senior Counsel > > Direction des services juridiques/Legal Services Directorate > > Office des transports du Canada/Canadian Transportation Agency > > Tél./Tel.: 819 994-2226 > > > > [email protected] > > > > > >>>> Gabor Lukacs 21/02/2014 1:19 PM >>> > > Dear Ms. Lalumiere and Ms. Bellerose, > > > > I am writing to follow up on the request below. I am profoundly > > concerned > > about what transpires as the Agency attempting to frustrate my rights > > pursuant to s. 2(b) of the Charter. > > > > Yours very truly, > > Dr. Gabor Lukacs > > > > > > > > > > On Mon, 17 Feb 2014, Odette Lalumiere wrote: > > > >> Mr Lukacs > >> Your request is being processed by Ms Bellerose’s group. > >> > >> Odette Lalumi??re > >> > >> > >> > >> From: Gabor Lukacs > >> Sent: Monday, February 17, 2014 4:07 PM > >> To: secretaire-secretary > >> Cc: Odette Lalumiere; Patrice Bellerose > >> Subject: Re: Request to view file no. M4120-3/13-05726 pursuant to s. 39 > > 2(b) > >> of the Charter > >> > >> Dear Madam Secretary, > >> > >> I am writing to follow-up on the matter below, which may be of some > > public > >> interest, and as such delay in your response may interfere with my > > rights > >> under s. 2(b) of the Charter. > >> > >> I look forward to hearing from you. > >> > >> Sincerely yours, > >> Dr. Gabor Lukacs > >> > >> > >> On Fri, 14 Feb 2014, Gabor Lukacs wrote: > >> > >>> Dear Madam Secretary, > >>> > >>> I would like to view the public documents in file no. > > M4120-3/13-05726. > >>> > >>> Due the public interest in the case, in which a final decision has > > been > >>> released today, the present request is urgent. > >>> > >>> Sincerely yours, > >>> Dr. Gabor Lukacs > >>> > >> > >> > > > > 40 41 This is Exhibit “I” to the Afﬁdavit of Dr. Gábor Lukacs afﬁrmed before me on April 25, 2014 Signature From [email protected] Wed Mar 19 13:59:48 2014 Date: Wed, 19 Mar 2014 12:58:42 -0400 From: Patrice Bellerose To: Gabor Lukacs Cc: Cathy Murphy , Odette Lalumiere Subject: Response to "Request to view file 4120-3/13-05726" [ The following text is in the "Windows-1252" character set. ] [ Your display is set for the "ISO-8859-1" character set. ] [ Some characters may be displayed incorrectly. ] Hello Mr. Lukacs, Please find attached copies of records in response to your "request to view file 4120-3/13-05726". Thank you. Patrice Bellerose Gestionnaire principale | Senior Manager Services d’information, des projets de services partagés et coordinatrice de l’AIPRP | Information Services, Shared Services Projects & ATIP Coordinator Office des transports du Canada | Canadian Transportation Agency Bureau 1718 | Office 1718 15 rue Eddy, Gatineau (QC) K1A 0N9 | 15 Eddy St., Gatineau, QC K1A 0N9 Téléphone | Telephone 819-994-2564 Télécopieur | Facsimile 819-997-6727 [email protected] [ Part 2, Application/PDF (Name: "AI-2013-00081.PDF") 15 MB. ] [ Unable to print this part. ] 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 This is Exhibit “J” to the Afﬁdavit of Dr. Gábor Lukacs afﬁrmed before me on April 25, 2014 Signature Halifax, NS [email protected] March 24, 2014 VIA EMAIL and FAX The Secretary Canadian Transportation Agency Ottawa, Ontario, K1A 0N9 Dear Madam Secretary: Re: Request pursuant to the open court principle and s. 2(b) of the Charter to view File No. M4120-3/13-05726 Heavily redacted documents received on March 19, 2014 I am writing to make a ﬁnal request, prior to making an application for judicial review, that the Agency comply with its obligations under the open court principle and s. 2(b) of the Canadian Charter of Rights and Freedoms, to make documents that are part of the public record available for public viewing. 1. On February 14, 2014, I made a request to the Agency to “view the public documents in ﬁle no. M4120-3/13-05726” pursuant to s. 2(b) of the Charter. 2. In subsequent communications dated February 17, 21, and 24, 2014, I have reiterated that my request was based on s. 2(b) of the Charter. 3. On March 19, 2014, I received an email from Ms. Bellerose, the Senior Manager of the Infor- mation Services, Shared Services Projects & ATIP Coordinator of the Agency, stating that: Please ﬁnd attached copies of records in response to your “request to view ﬁle 4120-3/13-05726”. Ms. Bellerose’s email had a PDF ﬁle named “AI-2013-00081.PDF” attached, which contained heavily redacted copies of documents in File No. M4120-13/13-05726. 165 March 24, 2014 Page 2 of 2 It is my position that providing redacted documents does not discharge the Agency’s obligations under the open court principle, because the ﬁle contains no conﬁdentiality order made by a Member of the Agency pursuant to Rules 23-25 of the Canadian Transportation Agency General Rules, S.O.R./2005-35. My position is consistent with Rule 23(1) of the Canadian Transportation Agency General Rules: The Agency shall place on its public record any document ﬁled with it in respect of any proceeding unless the person ﬁling the document makes a claim for its conﬁ- dentiality in accordance with this section. My position is also consistent with the Agency’s Privacy Statement concerning the Agency’s com- plaint process: In accordance with the values of the open court principle and pursuant to the Cana- dian Transportation Agency General Rules, all information ﬁled with the Agency becomes part of the public record and may be made available for public viewing. Finally, I refer to Decision No. 219-A-2009 of the Agency, concerning the motion of Leslie Tenen- baum for non-publication of his name and certain personal information, where the Agency ana- lyzed in great detail its own obligations under the open court principle. In light of the foregoing, I trust you agree with me that the documents in question were redacted without lawful authority or authorization to do so, and in breach of the Agency’s obligations under the open court principle and s. 2(b) of the Charter. Therefore, I am requesting that: A. the present letter be brought to the attention of Mr. Geoffrey C. Hare, Chair and CEO of the Agency; and B. the Agency provide me, within ﬁve (5) business days, with unredacted copies of all documents in File No. M4120-3-/13-05726 with respect to which no conﬁdentiality order was made by a Member of the Agency. Kindly please conﬁrm the receipt of this letter. Yours very truly, Dr. Gábor Lukács 166 167 This is Exhibit “K” to the Afﬁdavit of Dr. Gábor Lukacs afﬁrmed before me on April 25, 2014 Signature 168 169 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 Exami nat i on No. 14- 0775 Cour t Fi l e No. A- 218- 14 FEDERAL COURT OF APPEAL B E T WE E N: DR. GABOR LUKACS APPLI CANT - and – CANADI AN TRANSPORTATI ON AGENCY RESPONDENT ********************** CROSS- EXAMI NATI ON OF PATRI CE BELLEROSE ON HER AFFI DAVI T SWORN J ULY 29, 2014, pur suant t o an appoi nt ment made on consent of t he par t i es, t o be r epor t ed by Gi l l espi e Repor t i ng Ser vi ces, on t he 21st day of August , 2014, commenci ng at t he hour of 10: 29 i n t he f or enoon. ********************** APPEARANCES: Dr . Gabor Lukacs, f or t he Appl i cant Mr . Si mon- Pi er r e Lessar d, f or t he Respondent Thi s Cr oss- Exami nat i on was di gi t al l y r ecor ded by Gi l l espi e Repor t i ng Ser vi ces at Ot t awa, Ont ar i o, havi ng been dul y appoi nt ed f or t he pur pose. 170 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 ( i ) INDEX NAME OF WI TNESS: PATRI CE BELLEROSE CROSS- EXAMI NATI ON BY: DR. GABOR LUKACS NUMBER OF PAGES: 2 THROUGH TO AND I NCLUDI NG 27 ADVISEMENTS, OBJECTIONS & UNDERTAKINGS *O* . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 7, 16, 23 EXHIBITS EXHIBIT NO. 1: Af f i davi t of Pat r i ce Bel l er ose dat ed J ul y 29, 2014 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 EXHIBIT NO. 2: Di r ect i on t o At t end dat ed August 8, 2014 . . . . . . . . 2 EXHIBIT NO. 3: At t achment t o t he emai l dat ed Mar ch 19, 2014 12: 58 PM, f r omPat r i ce Bel l er ose t o Dr . Gabor Lukacs, at t achment 121 pages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 EXHIBIT NO. 4: Canadi an Tr anspor t at i on Agency Gener al Rul es, Rul e No. 23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 DATE TRANSCRI PT ORDERED: August 21, 2014 DATE TRANSCRI PT COMPLETED: August 25, 2014 171 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 2 PATRICE BELLEROSE, SWORN: 1 CROSS-EXAMINATION BY DR. GABOR LUKACS: 2 1. Q. Ms. Bel l er ose, I under st and t hat on J ul y 29, 3 2014, you swor e an af f i davi t . 4 A. Yes. 5 DR. LUKACS: Let ’ s mar k t hat Af f i davi t as Exhi bi t 6 1. 7 EXHIBIT NO. 1: Af f i davi t of Pat r i ce Bel l er ose 8 dat ed J ul y 29, 2014 9 DR. LUKACS: 10 2. Q. And I under st and t hat you r ecei ved t he 11 Di r ect i on t o At t end dat ed August 8, 2014. 12 A. That i s cor r ect . 13 DR. LUKACS: Let ’ s mar k i t as Exhi bi t 2. 14 EXHIBIT NO. 2: Di r ect i on t o At t end dat ed August 8, 15 2014 16 DR. LUKACS: 17 3. Q. For how l ong have you been wor ki ng wi t h t he 18 Canadi an Tr anspor t at i on Agency and i n what r ol es? 19 A. I have been wor ki ng wi t h t he Canadi an 20 Tr anspor t at i on Agency f or j ust about si x year s and my 21 i ni t i al posi t i on was t he manager of r ecor d ser vi ces and 22 access t o i nf or mat i on and pr i vacy co- or di nat or f or t he 23 Agency i ni t i al l y f or t he f i r st one t o t wo year s. I was 24 t he act i ng di r ect or of t he i nf or mat i on ser vi ces 25 172 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 3 di r ect or at e f or t hr ee and a hal f year s and I have r ecent l y 1 been changed t o a sl i ght l y di f f er ent posi t i on as t he 2 seni or manager of i nf or mat i on ser vi ces but t hat agai n i s 3 supposed t o be changi ng shor t l y. Ther e i s goi ng t o be 4 anot her r eor gani zat i on of t he Agency. 5 4. Q. I n your cur r ent r ol e what ar e your 6 r esponsi bi l i t i es? 7 A. I amr esponsi bl e f or al l r ecor ds, r ecor d 8 keepi ng at t he Agency, r et ent i on, di sposi t i ons, keepi ng 9 t he f i l es, so i nf or mat i on management , access t o 10 i nf or mat i on and mai l ser vi ces. 11 5. Q. So when you say “r ecor ds” can you el abor at e 12 what you mean by r ecor ds i n t hat cont ext ? 13 A. Al l r ecor ds r el at i ng t o t he Agency, bot h 14 t r ansi t or y and of f i ci al r ecor ds. 15 6. Q. So f or exampl e, when t he Agency or der s paper 16 woul d t hat al so be a r ecor d t hat you woul d be handl i ng? 17 A. I f we - - t he or der f or t he paper ? 18 7. Q. Yes, t he i nvoi ce and al l t hose t hi ngs, ar e 19 t hose r ecor ds i n t hi s sense? 20 A. I t depends. Pr obabl y f or a per i od of t i me we 21 have t o have a r ecor d of an i nvoi ce, sur e. 22 8. Q. And al so submi ssi ons of par t i es and 23 pr oceedi ngs bef or e t he Agency ar e r ecor ds? 24 A. Case f i l es ar e r ecor ds of t he Agency, yes. 25 173 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 4 9. Q. Okay. I n your cur r ent posi t i on can you 1 descr i be t o me t he chai n of command, who i s your i mmedi at e 2 super vi sor , super i or or whomdo you r epor t ? 3 A. Ri ght now I r epor t t o t he di r ect or of 4 i nf or mat i on ser vi ces who t he cur r ent act i ng i s Chr i st i ne 5 Guér et t e. She r epor t s t o t he act i ng di r ect or of 6 communi cat i ons and i nf or mat i on ser vi ces br anch whi ch i s 7 J acquel i ne Banni st er who r epor t s di r ect l y t o t he chai r man. 8 10. Q. J ust t o conf i r m, ar e you cur r ent l y or have you 9 ever been a member of t he Canadi an Tr anspor t at i on Agency? 10 A. Of t he whi ch? 11 11. Q. Of t he Canadi an Tr anspor t at i on Agency. Have 12 you been a member ? 13 A. No. 14 12. Q. I n car r yi ng out your dut i es as manager of 15 r ecor d ser vi ces and access t o i nf or mat i on and pr i vacy ar e 16 you r equi r ed t o f ol l ow t he deci si ons, r ul es and pol i ci es 17 made by t he Agency? 18 A. Yes. 19 13. Q. Now l et ’ s l ook at Exhi bi t A t o your Af f i davi t . 20 Do you have i t i n f r ont of you? 21 A. Exhi bi t A t o my Af f i davi t ? 22 14. Q. Yes. 23 A. Yes. 24 15. Q. Thi s i s an emai l dat ed Febr uar y 14t h, 2014 25 174 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 5 f r ommysel f t o t he secr et ar y of t he Agency, cor r ect ? 1 A. Yes. 2 16. Q. Wer e you awar e when you r ecei ved t hi s t hat i t 3 expl i ci t l y makes r ef er ence t o t he f act t hat t he r equest i s 4 made pur suant t o sect i on 2( b) of t he Char t er ? 5 A. Yes. 6 17. Q. Di d you under st and t he meani ng of a r equest 7 pur suant t o sect i on 2( b) of t he Char t er ? 8 A. Yes. 9 18. Q. What does i t mean? 10 A. I t means t hat you wer e maki ng a r equest under 11 t he Char t er , under your Char t er r i ght s, and any r equest s 12 f or i nf or mat i on at t he Agency ar e t r eat ed as i n - - t hose 13 t ypes of r equest s ar e t r eat ed as i nf or mal r equest s f or 14 i nf or mat i on. 15 19. Q. What does sect i on 2( b) of t he Char t er mean t o 16 you? 17 MR. LESSARD: For t he r ecor d, I wi l l obj ect t o t he 18 quest i on because - - wel l t her e i s an i ssue of r el evance 19 but al so because you ar e aski ng t he opi ni on t o t he 20 wi t ness. However MadamBel l er ose wi l l answer subj ect t o 21 t he r i ght t o have t he pr opr i et y of t he quest i on det er mi ned 22 by t he cour t at a l at er dat e. *O* 23 DR. LUKACS: Sur e. 24 THE WI TNESS: Okay so my under st andi ng i s t hat you 25 175 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 6 wer e maki ng a r equest under t he Char t er whi ch you wer e 1 sayi ng your Char t er r i ght s al l owed you t o r equest t he 2 document s as t hey wer e par t of t he open cour t pr i nci pl e 3 and wer e subj ect - - i t was under your Char t er r i ght s as 4 opposed t o maki ng a f or mal access t o i nf or mat i on r equest . 5 DR. LUKACS: 6 20. Q. Di d you make any i nqui r y t o anybody at t he 7 Agency as t o t he meani ng of a r equest pur suant t o sect i on 8 2( b) of t he Char t er ? 9 A. Wel l , we di scussed your r equest wi t h t he 10 secr et ar y and l egal ser vi ces. 11 MR. LESSARD: I wi l l obj ect because i t i s 12 sol i ci t or / cl i ent pr i vi l ege wi t h r espect t o di scussi ons 13 wi t h l egal ser vi ces and - - l i ke f or t he r est of t he 14 quest i on I don’ t r eal l y have a pr obl emwi t h i t . *O* 15 THE WI TNESS: So we di scussed t he r equest and i t 16 was det er mi ned t hat we woul d pr oceed, even t hough you had 17 i ndi cat ed t hat i t was under sect i on 2( b) of t he Char t er , 18 t hat we woul d pr oceed as a nor mal r equest f or i nf or mat i on 19 as we nor mal l y r ecei ve f or ot her case f i l es t hr oughout t he 20 Agency. We r egul ar l y r ecei ve t hemf r omot her appl i cant s 21 on a dai l y basi s. 22 DR. LUKACS: 23 21. Q. Di d you r ecei ve any i nst r uct i ons f r omyour 24 super i or s about how t o pr ocess such a r equest pur suant t o 25 176 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 7 sect i on 2( b) of t he Char t er ? 1 A. Al l r equest s f or i nf or mat i on ar e pr ocessed 2 t hr ough our of f i ce i n a st andar d f ashi on; ei t her t hey ar e 3 f or mal r equest s under t he Access t o I nf or mat i on Act or 4 t hey ar e i nf or mal . Gener al l y anybody aski ng f or 5 i nf or mat i on r egar di ng a case f i l e t hat i s ongoi ng at t he 6 Agency i s consi der ed an i nf or mal r equest because t he 7 document s ar e par t of t he publ i c r ecor d. 8 22. Q. So do you agr ee wi t h me t hat Exhi bi t A t o your 9 Af f i davi t was not a r equest made pur suant t o t he Access t o 10 I nf or mat i on Act ? 11 MR. LESSARD: I wi l l obj ect f or t he r ecor d agai n 12 because i n t hi s case i t i s not appr opr i at e i n t hi s t ype of 13 exami nat i on t o ask f or admi ssi ons f r oma wi t ness. She i s 14 her e as a wi t ness and not as a par t y. However Madame 15 Bel l er ose wi l l answer subj ect t o t he r i ght t o have t he 16 pr opr i et y of t he quest i on det er mi ned by t he cour t at a 17 l at er dat e. *O* 18 THE WI TNESS: I t was not consi der ed a f or mal 19 r equest under t he Access t o I nf or mat i on Act , no. I t di d 20 not meet t he r equi r ement s. 21 DR. LUKACS: 22 23. Q. So at sect i on 3 of your af f i davi t you say t hat 23 t he r equest was t r eat ed as an i nf or mal access r equest . 24 A. Yes. 25 177 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 8 24. Q. Can you pl ease expl ai n exact l y what an 1 i nf or mal access r equest means? 2 A. I t means any r equest s f or gover nment r ecor ds 3 t hat ar e not compl et ed f or mal l y under t he Access t o 4 I nf or mat i on Act , meani ng i t must r equi r e t he $5 f ee. I t 5 must have t he f or mal f or mt hat has been compl et ed and 6 si gned. 7 25. Q. So i n t he case of t hi s r equest you’ d agr ee 8 t hat no f ee was pai d. 9 A. No f ee was pai d nor was t he f or mf i l l ed out . 10 26. Q. So t her e ar e t wo t ypes of r equest s. Ther e i s 11 a f or mal r equest wher e t he f ee i s pai d and t he f or mi s 12 compl et ed and - - 13 A. Cor r ect . 14 27. Q. - - t hose ar e t r eat ed as f or mal r equest s under 15 t he Act . 16 A. Cor r ect . 17 28. Q. And t hen t her e ar e t he i nf or mal r equest s whi ch 18 ar e ever yt hi ng el se whi ch ar e not t r eat ed under t he Act , 19 cor r ect ? 20 A. That ' s cor r ect . 21 29. Q. I n par agr aph 3 of your Af f i davi t you say t hat 22 t hi s r equest was t r eat ed and I amquot i ng, “i n conf or mi t y 23 wi t h t he di r ect i ve on t he admi ni st r at i on of t he Access t o 24 I nf or mat i on Act ”. 25 178 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 9 A. Yes. 1 30. Q. I s Exhi bi t B t o your Af f i davi t t he di r ect i ve 2 t hat you ar e r ef er r i ng t o? 3 A. Yes. 4 31. Q. Can you poi nt t o speci f i c pr ovi si ons of t he 5 di r ect i ve t o whi ch t r eat i ng t he r equest as an i nf or mal 6 access r equest conf or ms? 7 A. Sect i on 7. 4. 5. 8 32. Q. Woul d you mi nd r eadi ng i t i nt o t he r ecor d j ust 9 f or cl ar i t y? 10 A. “I nf or mal pr ocessi ng 11 7. 4. 5 Det er mi ni ng whet her i t i s appr opr i at e t o 12 pr ocess t he r equest on an i nf or mal basi s. I f so, 13 of f er i ng t he r equest er t he possi bi l i t y of t r eat i ng 14 t he r equest i nf or mal l y and expl ai ni ng t hat onl y 15 f or mal r equest s ar e subj ect t o pr ovi si ons of t he 16 Act ”. 17 33. Q. So j ust f or cl ar i t y, accor di ng t o t hi s 18 di r ect i ve an i nf or mal r equest f or access i s not subj ect t o 19 t he pr ovi si ons of t he Act . I s t hat cor r ect ? 20 A. An i nf or mal ? 21 34. Q. Yes. 22 A. That i s cor r ect . 23 35. Q. And di d you consul t t hi s di r ect i ve when you 24 wer e deci di ng how t o t r eat my r equest ? 25 179 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 10 A. No, because any r equest t hat we r ecei ve f or 1 i nf or mat i on at t he Agency ot her t han f or mal r equest s ar e 2 t r eat ed as i nf or mal access t o i nf or mat i on r equest s. 3 36. Q. Let ’ s move on. I asked you t o br i ng t he 4 at t achment t o your Mar ch 19, 2014 emai l whi ch was 5 r ef er enced i n par agr aph 4 of your Af f i davi t . 6 A. Yes. 7 37. Q. I bel i eve i t consi st s of 121 pages. 8 A. That i s cor r ect . 9 DR. LUKACS: Let ’ s mar k i t as Exhi bi t 3. 10 EXHIBIT NO. 3: At t achment t o t he emai l dat ed Mar ch 11 19, 2014 12: 58 PM, f r omPat r i ce Bel l er ose t o Dr . 12 Gabor Lukacs, at t achment 121 pages. 13 DR. LUKACS: 14 38. Q. Do you agr ee t hat t he f i l e cont ai ns no cl ai m 15 f or conf i dent i al i t y by any of t he par t i es? 16 A. Yes. 17 39. Q. Do you agr ee t hat t he f i l e cont ai ns no 18 det er mi nat i on by t he Agency concer ni ng conf i dent i al 19 t r eat ment of any of t he document s or por t i ons of document s 20 i n t he f i l e? 21 A. Sor r y. Can you r epeat t hat ? 22 40. Q. Do you agr ee t hat t he f i l e cont ai ns no 23 det er mi nat i on by t he Agency concer ni ng conf i dent i al 24 t r eat ment of any of t he document s or por t i ons of 25 180 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 11 document s? 1 A. No. 2 41. Q. You don’ t agr ee or . . . ? 3 A. No. Ther e i s per sonal i nf or mat i on t hat i s 4 cont ai ned i n t he document s t hat t he Agency det er mi nes as 5 conf i dent i al . 6 42. Q. Can you r ef er me t o - - My quest i on i s: I s 7 t her e - - i n t he f i l e i s t her e a deci si on, or der or any 8 ot her deci si on by t he Agency st at i ng t hat cer t ai n 9 document s or por t i ons of document wi l l be t r eat ed 10 conf i dent i al l y? 11 A. The Pr i vacy Act r equi r es t hat we r emove 12 per sonal i nf or mat i on f r omAgency r ecor ds. 13 43. Q. I amsor r y. I di dn’ t ask you about t he 14 Pr i vacy Act . I asked you about t hose 121 pages. 15 A. Yes t her e cont ai ns per sonal i nf or mat i on i n 16 t hose 121 pages. 17 44. Q. That i s not my quest i on. 18 MR. LESSARD: Can you pl ease r ef or mul at e Dr . 19 Lukacs? 20 DR. LUKACS: Sur e. 21 45. Q. Among t hose 121 pages i s t her e any document , 22 any di r ect i ve, deci si on, or der made by a member or member s 23 of t he Agency di r ect i ng t hat any of t hese document s be 24 t r eat ed conf i dent i al l y? 25 181 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 12 A. No. 1 46. Q. Thank you. Do you agr ee wi t h me t hat some of 2 t he pages wer e par t i al l y bl acked out ? 3 A. Yes. 4 47. Q. Who deci ded whi ch par t s t o bl ack out ? 5 A. Mysel f i n col l abor at i on wi t h var i ous st af f 6 member s of t he Agency. 7 48. Q. How was i t deci ded whi ch par t s t o bl ack out ? 8 A. Per sonal i nf or mat i on was r emoved. That ' s al l . 9 49. Q. Al l per sonal i nf or mat i on? 10 A. No, onl y per sonal i nf or mat i on t hat was not 11 di vul ged i n t he deci si on. 12 50. Q. Under what l egal aut hor i t y was t he bl ackened 13 out s per f or med? 14 A. The Pr i vacy Act . 15 51. Q. So under t he Pr i vacy Act ar e you t el l i ng me 16 t hat you have t he aut hor i t y t o deci de whi ch par t s of an 17 Agency adj udi cat i ve document wi l l be r el eased? 18 A. Under t he Pr i vacy Act we ar e obl i gat ed t o 19 r emove per sonal i nf or mat i on f r omgover nment r ecor ds pr i or 20 t o r el easi ng t hem. 21 52. Q. Now l et ’ s l ook at page 75. I t was a l et t er 22 f r omAi r Canada t o t he secr et ar y of t he Agency dat ed 23 Oct ober 18t h, 2013, cor r ect ? 24 A. Cor r ect . 25 182 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 13 53. Q. Do you agr ee t hat t he name, t hat t he busi ness 1 emai l addr ess and t he si gnat ur e of Ai r Canada’ s counsel 2 wer e bl acked out on page 75? 3 A. Yes. 4 54. Q. Do you agr ee t hat t he name, t he busi ness emai l 5 addr ess and t he si gnat ur e of Ai r Canada’ s counsel wer e 6 bl acked out t hr oughout t he f i l e? 7 A. I woul d have t o l ook t hr ough t he pages - - 8 55. Q. Take your t i me. 9 A. - - t hr ough t he 121 pages t o ver i f y t hat but 10 t hey shoul d be. I t ’ s possi bl e we made an er r or but 11 gener al l y yes t hey shoul d be. 12 56. Q. So you say t hat t hose t hi ngs shoul d have been 13 bl acked out i n your opi ni on? 14 A. Thei r cont act i nf or mat i on as wel l as t hei r 15 emai l s. 16 57. Q. Even t hough we ar e t al ki ng about wor k emai l 17 addr ess, not home ones? 18 A. We have had var i ous consul t at i ons wi t h ai r 19 i ndust r y and di f f er ent i ndust r i es at t he Agency and 20 dependi ng on whet her a number i s publ i shed, a wor k number 21 i s publ i shed or not , det er mi nes whet her somet i mes t he 22 i nf or mat i on i s publ i c or not . Somet i mes i nf or mat i on i s 23 avai l abl e publ i cal l y; somet i mes i t ' s not . So i n t hose 24 cases mor e of t en t han not we er r on t he si de of caut i on 25 183 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 14 and i f t he number i sn’ t publ i shed - - somet i mes i t i s a 1 gener al number , f or exampl e. I f i t i s a gener al l i ne 2 obvi ousl y we i ncl ude t hat t ype of i nf or mat i on. 3 58. Q. So j ust t o be cl ear , you made t hi s deci si on or 4 deci ded what t hi ngs t o r edact i n consul t at i on al so wi t h 5 t he ai r l i ne i ndust r y. I s t hat cor r ect , what you j ust 6 ear l i er sai d? 7 A. On pr evi ous f i l es. That ' s not j ust ai r but 8 di f f er ent t r anspor t at i on modes. They have i ndi cat ed t hat 9 t her e ar e cer t ai n number s t hat ar e pur posel y not publ i shed 10 f or peopl e t hat wor k i n busi nesses and t hat t hey keep 11 t hose - - t hat i nf or mat i on pr ot ect ed f or var i ous r easons 12 and t hat t hey woul d l i ke i t not t o be di vul ged. 13 59. Q. So i n t he case of Ai r Canada, Ai r Canada’ s 14 l awyer s, t he counsel act i ng on t he f i l e, t he name of t he 15 counsel , t he busi ness emai l addr ess wer e bl acked out 16 pur suant t o t hi s r equest f r omt he i ndust r y, f r omAi r 17 Canada speci f i cal l y? 18 A. Based on consul t at i ons we have pr evi ousl y had 19 wi t h i ndust r y t hi s was - - 20 60. Q. But i n t hi s speci f i c f i l e was t her e any 21 r equest f r omAi r Canada t o have t hei r i nf or mat i on r edact ed 22 i n t hi s speci f i c f i l e? 23 A. We di dn’ t consul t t hemon t hi s speci f i c f i l e 24 because i t was i nf or mal and we j ust went wi t h accor di ng t o 25 184 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 15 t he usual per sonal i nf or mat i on exempt i ons t hat we had so 1 t hat we coul d get you t he f i l e i n a t i mel y f ashi on. 2 61. Q. Let ’ s go al so t o page 68 of t hi s f i l e, 3 act ual l y 67, Annex G. Thi s was an exhi bi t f i l ed by Ai r 4 Canada, cor r ect ? 5 A. That i s cor r ect . 6 62. Q. What I amseei ng her e on pages 68, 69 and 70 7 i s t hat vi r t ual l y t he ent i r e pages wer e bl acked out , 8 cor r ect ? 9 A. Cor r ect . 10 63. Q. Why i s t hat ? 11 A. Because t hey cont ai ned PNR det ai l s whi ch have 12 per sonal i nf or mat i on cont ai ned wi t hi n t hem. 13 64. Q. Al l PNR i nf or mat i on i s per sonal i nf or mat i on? 14 A. Par don me? 15 65. Q. Al l PNR i nf or mat i on i s per sonal i nf or mat i on? 16 A. Not necessar i l y. Cer t ai n par t s ar e. I t 17 cont ai ns al l of t he i nf or mat i on r el at i ng t o t he passenger 18 ai r t r avel . 19 66. Q. I sn’ t t hat t he i ssue bef or e t he Agency, t he 20 passenger s’ t r avel ? 21 A. Sur e, but t he det ai l s of t hei r t r avel ar en’ t 22 r eal l y r el evant . I f t hey ar e t hey have been i ncl uded i n 23 t he deci si on and t he i nf or mat i on i s r el eased. 24 67. Q. Ar e you f ami l i ar wi t h t he not i on of open cour t 25 185 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 16 pr i nci pl e? 1 A. I am. 2 68. Q. Di d you r ecei ve any t r ai ni ng concer ni ng t he 3 not i on of open cour t pr i nci pl e? 4 A. Yes. 5 69. Q. Ar e you awar e of any r el at i onshi p bet ween t he 6 open cour t pr i nci pl e and sect i on 2( b) of t he Char t er ? 7 MR. LESSARD: For t he r ecor d, I wi l l obj ect t o t he 8 quest i on because of r el evance and t he f act agai n t hat you 9 ar e aski ng an opi ni on f r oma wi t ness who i s not a par t y i n 10 t hi s case. However Madame Bel l er ose wi l l answer subj ect 11 t o t he r i ght t o have t he pr opr i et y of t he quest i on 12 det er mi ned by t he cour t at a l at er dat e. *O* 13 THE WI TNESS: Sor r y. Can you r epeat t he quest i on? 14 DR. LUKACS: 15 70. Q. My quest i on was: Ar e you awar e of any 16 r el at i onshi p bet ween t he open cour t pr i nci pl e and sect i on 17 2( b) of t he Char t er ? 18 A. Yes. 19 71. Q. Do you know i f t he Agency i s subj ect t o t he 20 open cour t pr i nci pl e? 21 A. Yes. 22 72. Q. Ar e you awar e of any pol i ci es or r ul es of t he 23 CTA t hat ar e i n pl ace f or t he pur pose of compl i ance wi t h 24 t he open cour t pr i nci pl e? 25 186 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 17 A. Our Gener al Rul es st at e t hat document s f i l ed 1 i n r el at i on t o a compl ai nt - - or act ual l y t her e i s a 2 speci f i c t er mf or i t . I don’ t have t he Gener al Rul es i n 3 f r ont of me - - but a pr oceedi ng, sor r y, wi l l be on t he 4 publ i c r ecor d. 5 73. Q. How many r equest s pur suant t o t he open cour t 6 pr i nci pl e have you handl ed i n, say, t he past 12 mont hs? 7 A. I n t he past 12 mont hs? I don‘ t have t he 8 number s wi t h me but we - - 9 74. Q. Appr oxi mat el y? 10 A. Twent y t o 25. 11 75. Q. And t hey wer e al l pur suant t o t he open cour t 12 pr i nci pl e? 13 A. They wer e al l r equest s f or - - I amt aki ng t he 14 l i ber t y of t r yi ng t o f i gur e out what you ar e t al ki ng about 15 but essent i al l y any r equest s f or case f i l es, document s 16 t hat wer e f i l ed i n r el at i on t o a deci si on t hat was i ssued 17 by t he Agency, wher e t he document s wer e pl aced on t he 18 publ i c r ecor d I woul d say we had about 20 t o 25 of t hose 19 i n t he past 12 mont hs. 20 76. Q. I n each case, i n each of t hose cases, what you 21 pr ovi ded t o t he publ i c was r edact ed document s? 22 A. J ust per sonal i nf or mat i on r emoved f r omeach of 23 t hem, yes. 24 77. Q. And al l r equest s t hat wer e made pur suant t o 25 187 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 18 t he open cour t pr i nci pl e wer e handl ed as i nf or mal access 1 r equest s? 2 A. That ' s cor r ect . And act ual l y I shoul d 3 el abor at e on my pr evi ous answer . Ther e wer e some r equest s 4 f or i nf or mat i on wher e cl ai ms f or conf i dent i al i t y had been 5 made on cer t ai n cases, so t hat i nf or mat i on was al so 6 r emoved i n t hose cases. 7 78. Q. That i s obvi ous. That i s not an i ssue i n t hi s 8 case. Al l r i ght ; l et ’ s l ook at page 79 of t he same 9 document . J ust f or cl ar i t y woul d you car e t o r ead i nt o 10 t he r ecor d t he t wo t i t l es and t he f i r st t wo par agr aphs, 11 pl ease? 12 A. “I mpor t ant pr i vacy i nf or mat i on and Open Cour t 13 Pr i nci pl e" 14 79. Q. And t he f i r st t wo par agr aph? 15 A. “As a quasi - j udi ci al t r i bunal oper at i ng l i ke a 16 cour t , t he Canadi an Tr anspor t at i on Agency i s bound by t he 17 const i t ut i onal l y pr ot ect ed open- cour t pr i nci pl e. Thi s 18 pr i nci pl e guar ant ees t he publ i c’ s r i ght t o know how 19 j ust i ce i s admi ni st er ed and t o have access t o deci si ons 20 r ender ed by admi ni st r at i ve t r i bunal s. Pur suant t o t he 21 Gener al Rul es, al l i nf or mat i on f i l ed wi t h t he Agency 22 becomes par t of t he publ i c r ecor d and may be made 23 avai l abl e f or publ i c vi ewi ng”. 24 80. Q. Okay, so what does “publ i c r ecor d” mean her e? 25 188 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 19 A. I t means i t ' s avai l abl e f or publ i c vi ewi ng. 1 I t ' s avai l abl e t o t he publ i c. 2 81. Q. So any document pl aced on publ i c r ecor d t he 3 publ i c can access. Woul d i t be f ai r t o say t hat ? 4 A. As l ong as i t i s f i l ed wi t h t he Agency and i n 5 r espect t o a pr oceedi ng. 6 82. Q. So ar e you t el l i ng me t hat i f somebody wal ks 7 i n t he door of t he Agency and says hi , I want t o see f i l e 8 number so- and- so t hen t hey can l ook at al l document s on 9 t he publ i c r ecor d? 10 A. Wel l t hey have t o be - - we have t o r emove 11 per sonal i nf or mat i on f r omt hempr i or t o vi ewi ng. 12 83. Q. But I don’ t under st and r eal l y. You say t hat 13 al l document s ar e pl aced on publ i c r ecor d. You j ust sai d 14 t hat al l document s on publ i c r ecor d can be vi ewed. Then 15 wher e does t hi s Act of r emoval f i t i nt o t hat not i on of 16 publ i c r ecor d? 17 A. I amsor r y. Can you r epeat t hat ? 18 84. Q. You j ust sai d t hat document s f i l ed wi t h t he 19 Agency ar e pl aced on publ i c r ecor d, cor r ect ? 20 A. Cor r ect . 21 85. Q. You al so sai d t hat document s on publ i c r ecor d 22 can be vi ewed by t he publ i c. 23 A. Cor r ect . 24 86. Q. Wher e does r edact i on come i nt o t hi s whol e 25 189 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 20 pr ocedur e t hen? The Agency’ s own i nf or mat i on sheet j ust 1 says t hat t hose t hi ngs may be vi ewed by t he publ i c. 2 A. They may be vi ewed by t he publ i c but t he 3 per sonal i nf or mat i on t hat i s cont ai ned wi t hi n t hose 4 document s i s r emoved pr i or t o vi ewi ng. 5 87. Q. So l et ’ s back- t r ace. What do you mean t hen by 6 t he not i on " publ i c r ecor d" , because my under st andi ng of 7 publ i c r ecor d i s t hat publ i c r ecor d i s a document t hat t he 8 publ i c can vi ew? Do you agr ee wi t h t hat ? 9 A. Yes. 10 88. Q. So what you ar e t el l i ng me her e i s t hat you go 11 and r emove per sonal i nf or mat i on f r omdocument s whi ch ar e 12 al r eady on publ i c r ecor d? 13 A. We r emove per sonal i nf or mat i on f r omAgency 14 r ecor ds pr i or t o di scl osi ng t hemt o t he publ i c, yes. 15 89. Q. Doesn’ t publ i c r ecor d mean t hat t he publ i c can 16 access t hose document s? 17 A. They ar e accessi ng t he document s. They ar e 18 j ust not accessi ng t he per sonal i nf or mat i on t hat i s 19 cont ai ned wi t hi n t hem. The publ i c has a r i ght t o 20 t r anspar ency whi ch i s t he pur pose of what we ar e doi ng 21 because of t he open cour t pr i nci pl e but t he i ndi vi dual 22 al so has a r i ght t o pr i vacy. 23 DR. LUKACS: Let ’ s mar k as Exhi bi t 4 Rul e 23 of 24 t he Agency, of t he Gener al Rul es. 25 190 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 21 THE WI TNESS: Sor r y, Rul e 23? Okay, we don’ t have 1 t he Gener al Rul es wi t h us but I bel i eve you ar e t al ki ng - - 2 DR. LUKACS: I bel i eve i t was pr i nt ed out . 3 THE WI TNESS: I t i s t he par t wher e i t t al ks about 4 t he conf i dent i al i t y of r ecor ds and t hat al l document s wi l l 5 be pl aced on t he publ i c r ecor d unl ess a cl ai mf or 6 conf i dent i al i t y i s made? 7 DR. LUKACS: That ' s r i ght . 8 THE WI TNESS: Okay. 9 EXHIBIT NO. 4: Canadi an Tr anspor t at i on Agency 10 Gener al Rul es, Rul e No. 23. 11 DR. LUKACS: 12 90. Q. So you have al r eady r ef er r ed t o i t and I 13 woul d pr ef er t o have i t i n f r ont of you. 14 MR. LESSARD: I j ust gave i t t o her . 15 THE WI TNESS: Thi s i s onl y a por t i on of t he 16 Gener al Rul es. Ther e ar e ot her t hi ngs t hat come i nt o 17 pl ay. We onl y have a por t i on her e t o t al k about but okay 18 l et ' s - - 19 DR. LUKACS: 20 91. Q. Whi ch por t i on do you have t her e because my 21 under st andi ng i s t hat Rul e 23 i n i t s ent i r et y shoul d be 22 bef or e you? 23 A. Rul e 23 i s her e. 24 92. Q. Yes. I s t her e any ot her Rul e i n t he Gener al 25 191 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 22 Rul es t hat gover n conf i dent i al i t y? 1 A. Yes, t her e i s anot her r ul e f ur t her t hat t al ks 2 about t he Agency can deemcer t ai n r ecor ds conf i dent i al . 3 Unf or t unat el y I don’ t have t he r ul es wi t h me t o i dent i f y 4 t hat f or you. I apol ogi ze. 5 93. Q. You ar e r ef er r i ng t o f i nanci al or cor por at e 6 i nf or mat i on. I s t hat t he Rul e t hat you ar e r ef er r i ng t o? 7 A. Yes. 8 94. Q. But we ar e t al ki ng her e about per sonal 9 i nf or mat i on not - - 10 A. That ’ s r i ght . 11 95. Q. So can you expl ai n t o me somet hi ng? 12 A. Sur e. 13 96. Q. Rul e 23 has an el abor at e conf i dent i al i t y 14 pr ocedur e. 15 A. That i s cor r ect . 16 97. Q. A par t y who doesn’ t want some i nf or mat i on t o 17 be r el eased t o t he publ i c can r equest conf i dent i al i t y, 18 cor r ect ? 19 A. That i s cor r ect . 20 98. Q. And i f t he r equest i s gr ant ed t hen a r edact ed 21 copy of t he document i s pl aced on t he publ i c r ecor d. 22 A. That ' s cor r ect . 23 99. Q. So deci di ng what t o r edact and what i sn’ t , 24 i sn’ t t hat t he j ob of t he member s of t he Agency accor di ng 25 192 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 23 t o Rul e 23? 1 MR. LESSARD: For t he r ecor d, I wi l l obj ect t o t he 2 quest i on because agai n i t i s a quest i on of r el evance and 3 you ar e aski ng f or an opi ni on or an admi ssi on f r omt he 4 wi t ness. However Madame Bel l er ose wi l l answer subj ect t o 5 t he r i ght t o have t he pr opr i et y of t he quest i on det er mi ned 6 by t he cour t at a l at er dat e. *O* 7 THE WI TNESS: The Agency i s subj ect t o t he Pr i vacy 8 Act and so f or t hat r eason t hat i s why t he per sonal 9 i nf or mat i on i s r edact ed. 10 DR. LUKACS: 11 100. Q. You ar e not answer i ng my quest i on. My 12 quest i on was: I sn’ t i t t he dut y of member s and t he 13 r esponsi bi l i t y of member s hear i ng t he case t o det er mi ne 14 pur suant t o Rul e 23 what por t i ons wi l l be r edact ed and 15 what por t i ons won’ t ? 16 A. I n a cl ai mf or conf i dent i al i t y, yes. 17 101. Q. So i f no cl ai mf or conf i dent i al i t y i s made al l 18 document s ar e pl aced on t he publ i c r ecor d, cor r ect ? 19 A. Wi t h t he per sonal i nf or mat i on r emoved. 20 102. Q. Can you poi nt t o me at anyt hi ng i n t he Gener al 21 Rul es t hat r equi r es t he r emoval of per sonal i nf or mat i on? 22 A. The Agency i s subj ect t o t he Pr i vacy Act . 23 That ' s what r equi r es us t o r emove t he per sonal 24 i nf or mat i on. 25 193 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 24 103. Q. My quest i on was: Can you poi nt t o me at 1 somet hi ng i n t he Gener al Rul es t hat r equi r es t he r emoval 2 of per sonal i nf or mat i on, i n t he Gener al Rul es? 3 A. I n t he Gener al Rul es, no. 4 104. Q. No. The Gener al Rul es r equi r e t hat al l 5 document s wi t h r espect t o whi ch conf i dent i al i t y has not 6 been cl ai med be pl aced on publ i c r ecor d, cor r ect ? 7 A. Thi s i s cor r ect . 8 105. Q. And what you ar e t el l i ng me i s t hat af t er a 9 document i s pl aced on publ i c r ecor d you go i n and r edact 10 t hi ngs f r omi t . 11 A. We don’ t r edact t hi ngs. We r edact per sonal 12 i nf or mat i on t hat i s r equi r ed under t he Pr i vacy Act whi ch 13 i s anot her l egi sl at i on t o whi ch we ar e r equi r ed t o compl y. 14 106. Q. I amsor r y. I amaski ng you now about t he 15 f act s, not about t he l aw, f or t he l aw wi l l be f or t he 16 cour t t o deci de. My quest i on i s: When you have a f i l e 17 whi ch cont ai ns no cl ai mf or conf i dent i al i t y whi ch we have 18 agr eed i s pl aced on publ i c r ecor d, cor r ect ? 19 A. Cor r ect . 20 107. Q. And t hen when t he publ i c want s t o access t he 21 f i l e you go i n and r edact a por t i on of i t . I s t hat 22 cor r ect ? 23 A. We r emove - - no, not a por t i on. We r emove 24 per sonal i nf or mat i on. 25 194 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 25 108. Q. I s per sonal i nf or mat i on not a por t i on of t he 1 document ? 2 A. I guess vaguel y, yes. 3 109. Q. I t i s cont ai ned i n t he document . So t o 4 summar i ze even when a document i s pl aced on publ i c r ecor d 5 pur suant t o Rul e 23 you r edact f ur t her por t i ons f r omi t 6 bef or e r el easi ng i t t o t he publ i c, cor r ect ? 7 A. Cor r ect . I t hi nk i t i s i mpor t ant t o cl ar i f y 8 t hat i t i s per sonal i nf or mat i on t hat i s r emoved. 9 " Por t i ons" i sn’ t r eal l y cl ear . I t i s i mpor t ant t o 10 di st i ngui sh t hat i t i s per sonal i nf or mat i on onl y t hat i s 11 r emoved. 12 110. Q. Thi ngs t hat you deemt o be per sonal 13 i nf or mat i on. 14 A. Thi ngs t hat ar e def i ned i n t he Act as per sonal 15 i nf or mat i on. 16 111. Q. But you pur por t t o maki ng t hose deci si ons what 17 t o r edact or not , we j ust hear d ear l i er , cor r ect ? 18 A. I i nt er pr et t he Act , i s t hat what you ar e 19 aski ng? 20 112. Q. What I amaski ng i s: Once t he document i s 21 pl aced on publ i c r ecor d and t he Agency - - as a member of 22 t he Agency di d not see a r eason t o gr ant conf i dent i al i t y- - 23 A. Or i f t her e was no r equest . 24 113. Q. Or i f t her e was no r equest . 25 195 GILLESPIE REPORTING SERVICES, A Division of 709387 Ontario Inc., 200‐130 Slater St. Ottawa Ontario K1P 6E2 Tel: 613‐238‐8501 Fax: 613‐238‐1045 Toll Free 1‐800‐267‐3926 26 A. That ' s r i ght . 1 114. Q. Then you go and make some deci si ons as t o what 2 t o r edact f r omt he f i l e bef or e i t i s r el eased t o t he 3 publ i c, cor r ect ? 4 A. Per sonal i nf or mat i on i s r emoved, t hat i s 5 cor r ect . 6 115. Q. And you deci de what wi l l be r emoved and what 7 not ? 8 A. I per sonal l y deci de or - - 9 116. Q. Yes. 10 A. –- i s t her e an appr oval pr ocess? 11 117. Q. What can you t el l me about t hat appr oval 12 pr ocess? 13 A. Sur e. Gener al l y speaki ng i t depends on - - 14 wi t h i nf or mal r equest s gener al l y we t ake car e of t hemi n 15 our of f i ce. Somet i mes we consul t wi t h l egal ser vi ces and 16 dependi ng on t he f i l e i t i s possi bl e t hat i t can go t o t he 17 chai r who i s t he del egat ed head f or access t o i nf or mat i on 18 and pr i vacy at t he Agency. 19 DR. LUKACS: I guess I have no mor e quest i ons. 20 Thank you. 21 22 23 - - THI S CROSS- EXAMI NATI ON ADJ OURNED AT 11: 07 A. M. ON 24 THE 21ST DAY OF AUGUST, 2014. 25 196 197 198 Court File No.: A-218-14 FEDERAL COURT OF APPEAL BETWEEN: DR. GÁBOR LUKÁCS Applicant – and – CANADIAN TRANSPORTATION AGENCY Respondent MEMORANDUM OF FACT AND LAW OF THE APPLICANT PART I – STATEMENT OF FACTS A. OVERVIEW 1. The Applicant is seeking various declarations and a mandamus to en- force his rights pursuant to the open court principle and s. 2(b) of the Charter to view “tribunal ﬁles” of the Canadian Transportation Agency (the “Agency”), that is, ﬁles of adjudicative proceedings before the Agency, which contain doc- uments received in the course of such proceedings, including submissions of the parties and exhibits. 2. The Applicant challenges the practices of the Agency that: (a) the public can view only redacted tribunal ﬁles, even in cases where a conﬁdentiality order was neither sought by the parties nor made by Member(s) of the Agency; and (b) Agency Staff, who are not Members of the Agency, purport to make determinations of conﬁdentiality in relation to tribunal ﬁles. Notice of Application [Tab 1, P1] - 2 - 199 B. BACKGROUND: THE AGENCY AND THE OPEN COURT PRINCIPLE 3. The Agency, established by the Canada Transportation Act, S.C. 1996, c. 10, consists of Members (including temporary members), who exercise the powers conferred upon the Agency by the Act. The Agency also has Staff, but they are not Members, and they cannot exercise the powers of the Agency. Canada Transportation Act, ss. 7 and 19 [App. “A”, P239, P242] 4. The Agency has a broad mandate in respect of all transportation matters under the legislative authority of Parliament. One of the Agency’s key functions is to adjudicate commercial and consumer transportation-related disputes as a quasi-judicial tribunal. 5. The Agency acknowledges in its “Important privacy information” notice, provided to parties in adjudicative proceedings, that it is subject to the open court principle when it acts in a quasi-judicial capacity: Open Court Principle As a quasi-judicial tribunal operating like a court, the Canadian Transportation Agency is bound by the constitutionally protected open-court principle. This principle guarantees the public’s right to know how justice is administered and to have access to deci- sions rendered by administrative tribunals. Pursuant to the General Rules, all information ﬁled with the Agency becomes part of the public record and may be made available for public viewing. [Emphasis added.] Lukács Afﬁdavit, Ex. “I”, p. 000079 [Tab 2I, P121] 6. The open court principle is incorporated in both the Agency’s old and current procedural rules, which speak about the “public record” and the “conﬁ- dential record” of the Agency, and provide that: - 3 - 200 (a) all documents ﬁled with the Agency are to be placed on the public record, unless conﬁdentiality was sought and granted; (b) a request for conﬁdentiality must be made by the party who is ﬁling the document, and at the time of the ﬁling; (c) requests for conﬁdentiality and redacted versions of conﬁdential documents are to be placed on the Agency’s public record; and (d) unredacted versions of conﬁdential documents are to be placed on the Agency’s conﬁdential record. Canadian Transportation Agency Rules (Dispute Proceedings), S.O.R./2014-104 (“New Rules”), ss. 7(2), 31(2) [App. “A”, P248-P251] Canadian Transportation Agency General Rules, S.O.R./2005-35 (“Old Rules”), ss. 23(1), 23(6) [App. “A”, P257, P259] C. THE AGENCY’S PRACTICE WITH RESPECT TO VIEWING TRIBUNAL FILES 7. In practice, members of the public are not permitted to view documents contained in the Agency’s tribunal ﬁles that were placed on the Agency’s “pub- lic record” in their entirety; only redacted versions of these documents can be viewed, with portions that contain “personal information” blacked out. What con- stitutes “personal information” is decided by Agency Staff. Bellerose Cross-Examination, Q82-Q86 [Tab 3, P189-P190] 8. The aforementioned practice is followed even in cases where the Member(s) of the Agency hearing the case did not ﬁnd it appropriate to grant conﬁdentiality or where conﬁdentiality was not requested by the parties at all. Bellerose Cross-Examination, Q112-Q114 [Tab 3, P195-P196] - 4 - 201 9. Agency Staff have an expansive notion of what constitutes “personal information”; for example, the name and business email address of a lawyer representing a corporation before the Agency may be “personal information” that, in their view, must be redacted from documents placed on “public record” before they would be disclosed to members of the public. Bellerose Cross-Examination, Q53-Q57 [Tab 3, P183] D. THE APPLICANT’S REQUEST TO VIEW A TRIBUNAL FILE 10. The Applicant, Dr. Gábor Lukács, is a Canadian air passenger rights ad- vocate. Lukács frequently comments on issues related to air passenger rights for the press and on social media. Lukács Afﬁdavit, para. 1 [Tab 2, P13] (i) The rights asserted: open court principle and s. 2(b) of the Charter 11. On February 14, 2014, Lukács made a request to the Agency to view the public documents in ﬁle no. M4120-3/3-05726, in respect of which the Agency rendered Decision No. 55-C-A-2014. Lukács clearly indicated that his request was made pursuant to subsection 2(b) of the Charter, which entails the open court principle. Lukács Afﬁdavit, para. 3, Ex. “A” [Tab 2A, P18] 12. Lukács clearly indicated in his subsequent correspondence with Agency Staff that he was seeking documents on the Agency’s public record, and that the legal basis of his request was subsection 2(b) of the Charter. Lukács Afﬁdavit, paras. 4-10, Ex. “B”-“H” [Tab 2B-2H, P20-P37] - 5 - 202 (ii) Agency staff understood the nature of the request 13. Agency Staff handling the request of Lukács clearly understood that Lukács was seeking documents that were placed on the Agency’s public record and that Lukács was making a request to exercise his open court principle and s. 2(b) Charter rights. Lukács Afﬁdavit, para. 9, Ex. “G” [Tab 2G, P33] Bellerose Cross-Examination, Q16-Q18 [Tab 3, P175] (iii) Not a request under the Access to Information Act 14. Requests for access to documents received by the Agency are classi- ﬁed as “formal requests” or “informal requests.” A “formal request” is one that is made under the Access to Information Act. A “formal request” requires the payment of a $5.00 fee and a completed and signed request form. All other requests are “informal requests.” Bellerose Cross-Examination, Q21, Q26-Q28 [Tab 3, P176, P178] 15. The request of Lukács was not made under the Access to Information Act; indeed, no fee was collected nor was a request form completed, and the Agency treated the request as an “informal request.” Bellerose Cross-Examination, Q25 [Tab 3, P178] Second Afﬁdavit of Ms. Patrice Bellerose, (sworn on July 29, 2014), para. 3 (iv) Redacted tribunal ﬁle 16. On March 19, 2014, Agency Staff sent Lukács a PDF ﬁle consisting of 121 numbered redacted pages from ﬁle no. M4120-3/3-05726 (“Redacted File”), with a substantial amount of information blacked out, including: - 6 - 203 (a) name and/or work email address of counsel acting for Air Canada in the proceeding (e.g., pages 1, 27, 28, 36, 37, 45, 72, 75); (b) names of Air Canada employees involved (e.g., pages 29, 31, 62, 64, 84, 87, 90, 92); and (c) substantial portions of submissions and evidence (e.g., pages 41, 54-56, 63, 68-70, 85, 94, 96, 100-112). Lukács Afﬁdavit, para. 11, Ex. “I” [Tab 2I, P41] Bellerose Cross-Examination, Q53-Q57, Q61-Q62 [Tab 3, P183, P185] (v) Conﬁdentiality was never sought nor granted 17. File no. M4120-3/3-05726 contains no claim for conﬁdentiality made by any of the parties nor a directive, decision, or order made by a Member of the Agency that any of the documents in the ﬁle be treated conﬁdentially. Lukács Afﬁdavit, Ex. “I” [Tab 2I, P41] Bellerose Cross-Examination, Q38, Q45 [Tab 3, P180, P181] (vi) Final demand 18. On March 24, 2014, Lukács sent the Agency a ﬁnal demand that: [...] the Agency comply with its obligations under the open court principle and s. 2(b) of the Canadian Charter of Rights and Freedoms, to make documents that are part of the public record available for public viewing. . . . [...] the Agency provide me, within ﬁve (5) business days, with unredacted copies of all documents in File No. M4120-3-/13- 05726 with respect to which no conﬁdentiality order was made by a Member of the Agency. Lukács Afﬁdavit, Ex. “J” [Tab 2J, P164] - 7 - 204 19. On March 26, 2014, Mr. Geoffrey C. Hare, Chair and Chief Executive Ofﬁcer of the Agency, wrote to Lukács, among other things, that: The Canadian Transportation Agency (Agency) is a government institution which was included in the schedule to the Privacy Act (Act) in 1982. [...] [...] Section 8 of the Act is clear that, except for speciﬁc excep- tions found in that section, personal information under the control of a government institution shall not, without the consent of the individual to whom it relates, be disclosed by that institution. [...] Although Agency case ﬁles are available to the public for con- sultation in accordance with the open court principle, personal information contained in the ﬁles such as an individual’s home address, personal email address, personal phone number, date of birth, ﬁnancial details, social insurance number, driver’s license number, or credit card or passport details, is not available for con- sultation. The ﬁle you requested has such sensitive personal information and it has therefore been removed by the Agency as is required under the Act. Lukács Afﬁdavit, Ex. “K” [Tab 2K, P167] 20. Mr. Hare’s letter contained no explanation for the sweeping redactions in the Redacted File, which go well beyond any stretch of the notion of “personal information.” - 8 - 205 PART II – STATEMENT OF THE POINTS IN ISSUE 21. The present application raises the following questions: (a) Are members of the public entitled, pursuant to the open court principle and s. 2(b) of the Charter, to access tribunal ﬁles of the Agency in their entirety? (b) If so, does the Privacy Act limit the open court principle and s. 2(b) Charter rights to access tribunal ﬁles of the Agency? (c) If so, can the limitation be saved under s. 1 of the Charter? (d) If it cannot be saved, what is the appropriate remedy? 22. Lukács submits that pursuant to the open court principle and s. 2(b) of the Charter, members of the public are entitled to view tribunal ﬁles in their entirety, unless documents in a ﬁle are subject to a conﬁdentiality order made by Member(s) of the Agency. Such orders must be made judicially, in accordance with the Dagenais/Mentuck test. 23. Lukács further submits that documents contained in the tribunal ﬁles of the Agency fall within the exclusions and/or exceptions of subsections 69(2) and/or 8(2)(a) and/or 8(2)(b) and/or 8(2)(m) of the Privacy Act. 24. Alternatively, if the Privacy Act does limit the open court principle and s. 2(b) Charter rights to access tribunal ﬁles of the Agency, then such infringe- ment cannot be justiﬁed under s. 1 of the Charter, and should be declared inapplicable to the tribunal ﬁles of the Agency. - 9 - 206 PART III – STATEMENT OF SUBMISSIONS Preliminary matter: inadmissible portions of the First Bellerose Afﬁdavit 25. Afﬁdavits ﬁled in relation to an application must be conﬁned to facts within the personal knowledge of the deponent; argumentative materials or le- gal conclusions are not permitted. Tendentious, opinionated, or argumentative portions of afﬁdavits may be struck. Federal Courts Rules, s. 81(1) [Tab 6, P271] Canadian Tire Corporation v. Canadian Bicycle Manufacturers Association, 2006 FCA 56, paras. 9-10 [Tab 4, P373] 26. Lukács is asking that the Honourable Court strike out or disregard the portions of the May 23, 2014 afﬁdavit of Ms. Patrice Bellerose (“First Bellerose Afﬁdavit”) that contain arguments or legal conclusions: the third sentence of paragraph 2 (“When...”); paragraph 3; the ﬁrst sentence of paragraph 4; all but the last sentence of paragraphs 5, 6, 8, and 9; the second sentence of para- graph 7; and the ﬁrst sentence of paragraph 10. First Afﬁdavit of Ms. Patrice Bellerose, (sworn on May 23, 2014), paras. 2-10 27. Lukács also asks that paragraph 12 and Exhibit “I” to the First Bellerose Afﬁdavit be disregarded, because they are an attempt to introduce legal opin- ions in the guise of evidence. First Afﬁdavit of Ms. Patrice Bellerose, (sworn on May 23, 2014), para. 12 - 10 - 207 A. STANDARD OF REVIEW: CORRECTNESS 28. Constitutional issues are necessarily subject to correctness review be- cause of the unique role of the courts as interpreters of the Constitution. Cor- rectness is also the standard of review for questions that are both of central importance to the legal system as a whole and outside the specialized exper- tise of a tribunal. Dunsmuir v. New Brunswick, 2008 SCC 9, paras. 58, 60 [Tab 5, P402, P403] 29. The present application concerns the open court principle and s. 2(b) of the Charter, and their possible interaction with the Privacy Act in the con- text of tribunal ﬁles. Thus, the issues are of a constitutional nature, the open court principle is of central importance for the legal system as a whole, and interpreting the Privacy Act is outside the specialized expertise of the Agency. 30. Therefore, Lukács submits that the impugned actions and practices of the Agency should be subject to correctness review (if the remedies sought may require determination of the appropriate standard of review at all). B. THE OPEN COURT PRINCIPLE AND S. 2(B) OF THE CHARTER 31. The century-old judgment of the House of Lords in Scott v. Scott has been a leading authority on the open court principle for Canadian courts in the pre-Charter era, and remained so even after the Charter came into force. Some of the issues in Scott were the validity of an order directing that an embarrassing divorce case be heard in camera, and whether parties were required to keep details of the hearing in secret after the trial. Viscount Haldane L.C. held that: to justify an order for hearing in camera it must be shewn that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made. - 11 - 208 The Earl of Halsbury opined that “every Court of justice is open to every subject of the King,” with only very few and special exceptions. With respect to the injunction for perpetual secrecy, Earl Loreburn held that: It is not that a Court ought to refrain from exercising its power in such a way. It is that the Court does not possess such a power. Lord Shaw of Dunfermline cited Jeremy Bentham with approval: “In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.” “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.” “The security of securities is publicity.” Scott v. Scott, [1913] A.C. 417, at 439, 440, 448, and 477 [Tab 13, P619, P620, P628, P657] 32. In the pre-Charter case of A.G. (Nova Scotia) v. MacIntyre, the Supreme Court of Canada rejected the argument that privacy, in and on its own, trumps the requirement for openness of proceedings: Many times it has been urged that the ’privacy’ of litigants re- quires that the public be excluded from court proceedings. It is now well established, however, that covertness is the exception and openness the rule. Public conﬁdence in the integrity of the court system and understanding of the administration of justice are thereby fostered. As a general rule the sensibilities of the in- dividuals involved are no basis for exclusion of the public from judicial proceedings. . . . In my view, curtailment of public accessibility can only be justi- ﬁed where there is present the need to protect social values of superordinate importance. One of these is the protection of the innocent. Nova Scotia (Attorney General) v. MacIntyre, [1982] 1 SCR 175, p. 8-9 [Tab 10, P536-P537] - 12 - 209 33. Since the Charter came into force, the open court principle has become a constitutionally protected right. The rights guaranteed by s. 2(b) of the Charter do entail the open court principle and the right of the public to obtain information about the courts, including court proceedings: The principle of open courts is inextricably tied to the rights guar- anteed by s. 2(b). Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and pro- ceedings. While the freedom to express ideas and opinions about the operation of the courts is clearly within the ambit of the free- dom guaranteed by s. 2(b), so too is the right of members of the public to obtain information about the courts in the ﬁrst place. [Emphasis added.] CBC v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, para. 23 [Tab 3, P350] (i) Open court principle rights are enforceable by mandamus 34. Access to exhibits is a corollary to the open court principle. The open court principle and s. 2(b) Charter rights are not limited to attending court and observing what actually transpires in the courtroom. R. v. CBC, 2010 ONCA 726, para. 28 [Tab 11, P557] 35. The “open court principle” is not a mere principle, but rather it confers enforceable rights on members of the public (and the media), and a public duty on those controlling documents that are subject to the open court principle. These rights and public duties are enforceable by way of an application for judicial review for a writ of mandamus. Southam Inc. v. Canada (Minister of Employment and Immigration), [1987] 3 F.C. 329, para. 11 [Tab 15, P682] Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, para. 11 (citing para. 6 of the reasons of the Ontario Court of Appeal) [Tab 18, P730] - 13 - 210 (ii) The Dagenais/Mentuck test 36. Although legal proceedings are presumptively open, the open court prin- ciple is not absolute. Public access may be limited or barred if “disclosure would subvert the ends of justice or unduly impair its proper administration.” This cri- terion has come to be known as the Dagenais/Mentuck test, and requires con- sidering: (a) the necessity of the order to prevent a serious risk to the proper administration of justice because reasonable alternative measures will not prevent the risk; and (b) whether the salutary effects of the order outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efﬁcacy of the ad- ministration of justice. This test applies to all discretionary decisions that limit freedom of expression and freedom of the press in relation to legal proceedings. Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, paras. 3-4, 7, and 26-28 [Tab 18, P728, P733] 37. Protection of the innocent or a vulnerable party and preventing revictim- ization by publication of identifying details may justify departure from the rule of openness of proceedings. Such decisions are to be made using the Dage- nais/Mentuck test. Protection of privacy may be the means by which “serious risk” can be prevented; however, privacy is not an end in itself that trumps the open court principle. A.B. v. Bragg Communications Inc., 2012 SCC 46, paras. 14, 27 [Tab 1, P285, P289] - 14 - 211 (iii) The open court principle applies to tribunals engaged in quasi- judicial functions 38. The open court principle applies to statutory tribunals exercising judicial or quasi-judicial functions, because they constitute part of the administration of justice, and legitimacy of their authority requires that public conﬁdence in their integrity be maintained. Tribunals must exercise their discretion to control their own procedures within the boundaries set by the Charter. Southam Inc. v. Canada (Minister of Employment and Immigration), [1987] 3 F.C. 329, para. 9 [Tab 15, P681] Tipple v. Deputy Head (Department of Public Works and Government Services), 2009 PSLRB 110, para. 13 [Tab 17, P723] Germain v. Saskatchewan (Automobile Injury Appeal Commission), 2009 SKQB 106, para. 104 [Tab 7, P501] El-Helou v. Courts Administration Service, 2012 CanLII 30713 (CA PSDPT), para. 59 [Tab 6, P454] 39. Determining whether a tribunal exercises judicial or quasi-judicial func- tions requires considering a number of factors, including whether it involves adversarial-type processes, and whether the decision or order directly or indi- rectly affect the rights and obligations of a person. Southam Inc. v. Canada (Minister of Employment and Immigration), [1987] 3 F.C. 329, para. 8 [Tab 15, P681] El-Helou v. Courts Administration Service, 2012 CanLII 30713 (CA PSDPT), para. 60 [Tab 6, P454] 40. The presence of a provision in the enabling statute of a tribunal that al- lows the tribunal to determine that proceedings may be held in camera clariﬁes that the proceedings are presumptively open to the public. El-Helou v. Courts Administration Service, 2012 CanLII 30713 (CA PSDPT), para. 61 [Tab 6, P455] - 15 - 212 (iv) The open court principle applies to the Agency 41. In the Tenenbaum v. Air Canada case, the Agency correctly concluded after a very thorough analysis that when the Agency adjudicates complaints, it acts as a quasi-judicial tribunal, and as such, it is bound by the open court principle. In the same decision, the Agency also noted that: [...] section 23 of the General Rules provides that any document ﬁled in respect of any proceeding will be placed on its public record, unless the person ﬁling the document makes a claim for its conﬁdentiality. The person making the claim must indicate the reasons for the claim. The record of the proceeding will therefore be public unless a claim for conﬁdentiality has been accepted. [Emphasis added.] Tenenbaum v. Air Canada, CTA Decision No. 219-A-2009, paras. 45-46 [Tab 16, P689] 42. The Agency’s conclusions in Tenenbaum are further supported by the observation that subsection 17(b) of the Canada Transportation Act allows the Agency to make rules with respect to the circumstances in which hearings may be held in private. As noted in El-Helou, supra, such provisions clarify that the proceedings are presumptively open to the public. Canada Transportation Act, s. 17(b) [App. “A”, P242] El-Helou v. Courts Administration Service, 2012 CanLII 30713 (CA PSDPT), para. 61 [Tab 6, P455] 43. Lukács adopts the aforementioned conclusions of the Agency in Tenen- baum as his own position, and submits that members of the public are entitled to view all documents in tribunal ﬁles of the Agency in their entirety, with the exception of documents that are subject to a conﬁdentiality order of the Agency (that is, a decision accepting a claim for conﬁdentiality). - 16 - 213 (v) Claims of conﬁdentiality are to be decided by Members 44. Deciding whether a particular document or a portion thereof is to be granted conﬁdentiality requires the decision-maker to apply the law, that is, the Dagenais/Mentuck test, to the facts. The power to make such decisions with respect to tribunal ﬁles of the Agency stems from the Agency’s powers to control its proceedings and subsection 17(b) of the Canada Transportation Act. These powers have nothing to with the Access to Information Act or the Privacy Act. Canada Transportation Act, s. 17(b) [App. “A”, P242] 45. Thus, decisions with respect to conﬁdentiality of documents contained in tribunal ﬁles of the Agency are of a judicial or quasi-judicial nature, and not of an administrative or executive one. As such, the power to make such decisions must be exercised by the Agency, consisting of the Members (and temporary members) who are authorized to make orders and decisions. Canada Transportation Act, ss. 7 and 19 [App. “A”, P239, P242] 46. Section 73 of the Access to Information Act and the Privacy Act only permits delegation of administrative or executive powers, duties or functions of the head of the institute “under this Act,” and do not authorize delegation of the Agency’s judicial or quasi-judicial powers to control its own procedures and tribunal records, or to decide what matters will be heard in camera. First Afﬁdavit of Ms. Patrice Bellerose, (sworn on May 23, 2014), Ex. “C” 47. Therefore, Agency Staff cannot be delegated the power to make deci- sions with respect to conﬁdentiality of documents or portions thereof contained in the Agency’s tribunal ﬁles, and these powers are reserved to Members of the Agency. - 17 - 214 C. TRIBUNAL FILES FALL WITHIN THE EXCLUSIONS AND/OR EXCEPTIONS TO THE PRIVACY ACT 48. The Agency appears to claim that the Privacy Act prohibits the disclo- sure of “personal information” contained in the Agency’s tribunal ﬁles, even if no conﬁdentiality order was sought by any of the parties nor granted by Member(s) of the Agency. Lukács Afﬁdavit, Ex. “K” [Tab 2K, P167] 49. Lukács submits that the Agency’s position is misguided in that it fails to recognize that the the Agency’s tribunal ﬁles fall within the exclusions and/or exceptions to the Privacy Act. (i) The “publicly available” exclusion and the “in accordance with any Act of Parliament or any regulation made thereunder” exception 50. Subsection 69(2) of the Privacy Act exempts personal information that is “publicly available” from the application of sections 7 and 8, while subparagraph 8(2)(b) permits disclosure for any purpose in accordance with legislation or regulation. Privacy Act, R.S.C. 1985, c. P-21, ss. 69(2), 8(2)(b) [App. “A”, P277, P273] 51. Due to the open court principle, personal information that the Agency receives as part of its quasi-judicial functions is publicly available (unless a claim for conﬁdentiality was granted). Thus, pursuant to s. 69(2) of the Privacy Act, personal information contained in the Agency’s tribunal ﬁles is not subject to sections 7 and 8. El-Helou v. Courts Administration Service, 2012 CanLII 30713 (CA PSDPT), para. 77 [Tab 6, P461] - 18 - 215 52. The Agency is a statutory tribunal created by the Canada Transportation Act for the purpose of, among other things, carrying out quasi-judicial functions. The Agency’s rules of procedures are regulations made under its enabling act. Both the Old Rules and the New Rules of the Agency require placing docu- ments received by the Agency in the course of proceedings on “public record,” unless a claim for conﬁdentiality is made at the time of their ﬁling. New Rules, ss. 7(2), 31(2) [App. “A”, P248-P251] Old Rules, ss. 23(1), 23(6) [App. “A”, P257, P259] 53. Therefore, disclosure of documents contained in the Agency’s tribunal ﬁles, including any personal information that such documents may contain, is not only authorized, but explicitly required both by s. 2(b) of the Charter, and the Agency’s Old and New Rules; hence, such disclosure is permitted by s. 8(2)(b) of the Privacy Act. El-Helou v. Courts Administration Service, 2012 CanLII 30713 (CA PSDPT), paras. 69-71 [Tab 6, P458-P459] (ii) The “use consistent with that purpose” exception 54. Subparagraph 8(2)(a) of the Privacy Act permits disclosure of personal information for the purpose for which the information was obtained or for a use consistent with that purpose. Privacy Act, R.S.C. 1985, c. P-21, s. 8(2)(a) [App. “A”, P273] 55. Both the Agency’s Old and New Rules require a party to a proceeding before the Agency to submit their complete address, telephone number, and all documents in support of their pleadings. These pieces of information are submitted by parties for the purpose of the adjudication by the Agency. New Rules, ss. 18(1), 19, Schedules 5 and 6 [App. “A”, P249-P250, P254-P255] Old Rules, s. 40 [App. “A”, P262] - 19 - 216 56. Parties to adjudicative proceedings before the Agency are informed that the Agency is bound by the open court principle and that “all information ﬁled with the Agency becomes part of the public record and may be made available for public viewing.” Lukács Afﬁdavit, Ex. “I”, p. 000079 [Tab 2I, P121] 57. Therefore, it is submitted that disclosure of information ﬁled with the Agency in the course of adjudicative proceedings, by placing the documents on public record in their entirety, is consistent with the purpose for which the information was obtained. El-Helou v. Courts Administration Service, 2012 CanLII 30713 (CA PSDPT), paras. 68, 71 [Tab 6, P458-P459] (iii) Public interest in transparency 58. Subparagraph 8(2)(m)(i) of the Privacy Act also confers discretion to disclose personal information if public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure. Privacy Act, R.S.C. 1985, c. P-21, s. 8(2)(m)(i) [App. “A”, P274] 59. In light of the role of the Agency as a quasi-judicial tribunal, there is an overwhelming public interest in the transparency of its proceedings through openness and public access. El-Helou v. Courts Administration Service, 2012 CanLII 30713 (CA PSDPT), para. 72 [Tab 6, P459] (iv) Conclusion with respect to the Privacy Act 60. In light of the foregoing, it is submitted that the Privacy Act does not limit access, pursuant to the open court principle, to documents in the tribunal ﬁles of the Agency, unless the documents are subject to a claim of conﬁdentiality that was accepted by the Agency. - 20 - 217 D. INAPPLICABILITY OF THE PRIVACY ACT: THE OAKES TEST 61. If the Privacy Act does limit the rights of the public, pursuant to the open court principle, to view documents in the tribunal ﬁles of the Agency (not subject to a conﬁdentiality order), then these provisions of the Privacy Act infringe sub- section 2(b) of the Charter, because the open court principle is a right protected by s. 2(b). 62. Thus, in this case, the Agency bears the onus of establishing that the impugned provisions are saved by s. 1 of the Charter. The Agency ﬁled no afﬁdavit evidence to discharge this burden of proof. Toronto Star Newspapers Ltd. v. Canada, 2007 FC 128, para. 41 [Tab 19, P748] 63. The legal test for saving an infringing provision under s. 1 of the Char- ter is the Oakes test. The Supreme Court of Canada held that the Dage- nais/Mentuck test requires neither more nor less than the Oakes test. A.B. v. Bragg Communications Inc., 2012 SCC 46, para. 16 [Tab 1, P286] 64. Thus, if a document (or personal information contained in a document) does not meet the Dagenais/Mentuck test for a conﬁdentiality order, then re- stricting public access to the document cannot be justiﬁed pursuant to the Oakes test either. 65. Therefore, it is logically impossible to save, pursuant to s. 1 of the Char- ter, any provision of the Privacy Act that purports to restrict public access to tribunal ﬁles of the Agency with respect to which no conﬁdentiality was sought nor granted, and thus they fail to meet the the Dagenais/Mentuck test. - 21 - 218 66. Hence, if there are any provisions of the Privacy Act that purport to limit the rights of the public, pursuant to the open court principle, to view documents in the tribunal ﬁles of the Agency that are not subject to a conﬁdentiality order, then these provisions are unconstitutional. E. REMEDIES (i) Mandamus 67. The Agency refused the request of Lukács for unredacted copies of the public documents in File No. M4120-3/13-05726, even though it was not subject to a conﬁdentiality order. Lukács was provided only with redacted documents. The act of the redaction cannot be justiﬁed by the Privacy Act; even if it were, its extent cannot be justiﬁed (for example, the name or workplace contact infor- mation of counsel in an adjudicative proceeding is not personal information). 68. Lukács, whose s. 2(b) Charter rights were thus violated, is seeking a mandamus to enforce his open court principle rights. In Apotex Inc. v. Canada, this Honourable Court formulated eight requirements that must be met before a mandamus can be issued. Apotex Inc. v. Canada (Attorney General) (C.A.), [1994] 1 F.C. 742, para. 45 [Tab 2, P313-P314] 69. It is unclear whether these requirements must be individually addressed in the case of enforcing constitutional rights, such as the open court principle rights, or if s. 24(1) of the Charter is a sufﬁcient basis for granting a mandamus. Southam Inc. v.Canada (Minister of Employment and Immigration), [1987] 3 F.C. 329, para. 11 [Tab 15, P682] Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, para. 11 (citing para. 6 of the reasons of the Ontario Court of Appeal) [Tab 18, P730] - 22 - 219 70. Lukács submits that all eight requirements for a mandamus set out in Apotex are met in the present case: (a) the open court principle imposes a public legal duty upon the Agency, as a tribunal in control of records of its proceedings, to grant public access to its tribunal records in their entirety, with the exception of documents that are subject to a conﬁdentiality order; (b) the duty is owed to Lukács as a member of the public, and also as an individual who frequently comments on air passenger rights in the media; (c) Lukács made numerous demands, including a ﬁnal demand, for performance, that is, for unredacted copies of documents in File No. M4120-3/13-05726 (which is not subject to any conﬁdentiality order), but was refused; (d) the duty imposed on the Agency by the open court principle is not discretionary (only granting a conﬁdentiality order is); (e) there is no other adequate avenue for Lukács to obtain unredacted copies of the documents in question; (f) the order will have a practical effect, namely, it will allow Lukács to obtain unredacted copies of the documents sought, which the Agency has refused to provide; (g) there is no equitable bar to the relief sought; and (h) since Lukács is seeking to enforce a constitutional right, the “bal- ance of convenience” is clearly in favour of issuing an order. - 23 - 220 (ii) Declarations 71. Lukács is challenging not only the Agency’s actions with respect to his request to view File No. M4120-3/13-05726, but also the Agency’s practices with respect to requests made pursuant to the open court principle. The reason for this broader challenge is that it would not be a good use of judicial resources if members of the public had to make an application for judicial review to this Honourable Court every time they wanted to view a public ﬁle of the Agency. 72. As the facts of the present case reveal, allowing the public to view only redacted documents in the Agency’s tribunal ﬁles, even in the absence of a conﬁdentiality order, is the modus operandi of the Agency. (Moreover, decisions as to what to redact is made by Agency Staff, who are not Members.) For the reasons set out above, this practice is inconsistent with the open court principle and s. 2(b) of the Charter and the enabling statute of the Agency. Such unconstitutional practices have been cured in Southam by a combination of a prohibition and a mandamus. Southam Inc. v. Canada (Minister of Employment and Immigration), [1987] 3 F.C. 329, para. 11 [Tab 15, P682] 73. In the case of the Agency, the issue does not appear to be so much whether the open court principle applies to the Agency, but rather the extent of the duty it imposes on the Agency, and whether the Privacy Act affects this duty in any way. 74. Thus, guidance from this Honourable Court in the form of a declaration of the rights of members of the public, the duties of the Agency, and the state of the law with respect to the Privacy Act exclusions and exemptions might be sufﬁcient to ensure that the Agency amends its practices. - 24 - 221 (iii) Constitutional remedy with respect to the Privacy Act 75. As an alternative argument, Lukács submits that if there are any provi- sions of the Privacy Act that purport to limit open court principle rights of the public to view tribunal ﬁles of the Agency that are not subject to a conﬁdentiality order, then these provisions are unconstitutional. 76. Lukács submits that in these circumstances the appropriate constitu- tional remedy, if such is necessary, is to “read down” the Privacy Act to apply only to conﬁdential documents in the Agency’s tribunal ﬁles, and to be inappli- cable with respect to those documents that are not subject to a conﬁdentiality order. Ruby v. Canada (Solicitor General), 2002 SCC 75, para. 60 [Tab 12, P587] - 25 - 222 F. COSTS 77. The present application is of the nature of public interest litigation, be- cause it raises a constitutional question that relates to the transparency of the administration of justice. The application is not frivolous; indeed, Webb, J.A. dismissed the Agency’s motion to quash the application. Lukács v. Canadian Transportation Agency, 2014 FCA 205 [Tab 9, P519] 78. Lukács is seeking disbursements and a moderate allowance for the con- siderable amount of time and effort he devoted to the present application. Sherman v. Canada (Minister of National Revenue), 2004 FCA 29 [Tab 14, P669] 79. In Lukács v. Canada (Transportation Agency), this Honourable Court awarded the appellant disbursements even though the appeal was dismissed: In the circumstances where the appeal was in the nature of public interest litigation and the issue raised by the appellant was not frivolous, I would award the appellant his disbursements in this Court. Lukács v. Canada (Transportation Agency), 2014 FCA 76, para. 62 [Tab 8, P518] 80. If Lukács is not successful on the present application, he is asking the Honourable Court to exercise its discretion by not awarding costs against him, and by ordering the Agency to pay Lukács his disbursements. - 26 - 223 PART IV – ORDER SOUGHT 81. The Applicant, Dr. Gábor Lukács, is seeking an Order: (a) granting a mandamus, directing the Canadian Transportation Agency to provide the Applicant with unredacted copies of the documents in File No. M4120-3/13-05726, or otherwise allow the Applicant and/or others on his behalf to view unredacted copies of these documents; (b) declaring that adjudicative proceedings before the Canadian Transportation Agency are subject to the constitutionally protected open-court principle; (c) declaring that all information, including but not limited to docu- ments and submissions, provided to the Canadian Transportation Agency in the course of adjudicative proceedings are part of the public record in their entirety, unless conﬁdentiality was sought and granted in accordance with the Agency’s rules; (d) declaring that members of the public are entitled to view all infor- mation, including but not limited to documents and submissions, provided to the Canadian Transportation Agency in the course of adjudicative proceedings, unless conﬁdentiality was sought and granted in accordance with the Agency’s rules; (e) declaring that information provided to the Canadian Transporta- tion Agency in the course of adjudicative proceedings falls within the exceptions of subsections 69(2) and/or 8(2)(a) and/or 8(2)(b) and/or 8(2)(m) of the Privacy Act, R.S.C. 1985, c. P-21; - 27 - 224 (f) in the alternative, declaring that provisions of the Privacy Act, R.S.C. 1985, c. P-21 are inapplicable with respect to information, including but not limited to documents and submissions, provided to the Canadian Transportation Agency in the course of adjudica- tive proceedings to the extent that these provisions limit the rights of the public to view such information pursuant to subsection 2(b) of the Canadian Charter of Rights and Freedoms; (g) declaring that the power to determine questions related to con- ﬁdentiality of information provided in the course of adjudicative proceedings before the Canadian Transportation Agency is re- served to Members of the Agency, and cannot be delegated to Agency Staff; (h) granting disbursements and a moderate allowance for the time and effort the Applicant devoted to the present application; and (i) such further and other relief or directions as the Applicant may request and this Honourable Court deems just. ALL OF WHICH IS RESPECTFULLY SUBMITTED. September 30, 2014 DR. GÁBOR LUKÁCS Halifax, NS [email protected] Applicant - 28 - 225 PART V – LIST OF AUTHORITIES STATUTES AND REGULATIONS Canadian Charter of Rights and Freedoms, ss. 2(b) and 24(1) Canada Transportation Act, S.C. 1996, c. 10, ss. 1-41 Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings), S.O.R./2014-104, ss. 7(2), 31(2) Canadian Transportation Agency General Rules, S.O.R./2005-35, ss. 23(1), 23(6) Federal Courts Act, R.S.C. 1985, c. F-7 ss. 18, 18.1, 18.5, 28 Federal Courts Rules, S.O.R./98-106, s. 81 Privacy Act, R.S.C. 1985, c. P-21 ss. 8(2)(a), 8(2)(b), 8(2)(m)(i), 69(2) CASE LAW A.B. v. Bragg Communications Inc., 2012 SCC 46 Apotex Inc. v. Canada (Attorney General) (C.A.), [1994] 1 F.C. 742 Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 Canadian Tire Corporation v. Canadian Bicycle Manufacturers Association, 2006 FCA 56 - 29 - 226 CASE LAW (CONTINUED) Dunsmuir v. New Brunswick, 2008 SCC 9 El-Helou v. Courts Administration Service, 2012 CanLII 30713 (CA PSDPT) Germain v. Saskatchewan (Automobile Injury Appeal Commission), 2009 SKQB 106 Lukács v. Canada (Transportation Agency), 2014 FCA 76 Lukács v. Canadian Transportation Agency, 2014 FCA 205 Nova Scotia (Attorney General) v. MacIntyre, [1982] 1 SCR 175 R. v. Canadian Broadcasting Corporation, 2010 ONCA 726 Ruby v. Canada (Solicitor General), 2002 SCC 75 Scott v. Scott, [1913] A.C. 417 (H.L) Sherman v. Canada (Minister of National Revenue), 2004 FCA 29 Southam Inc. v. Canada (Minister of Employment and Immigration), [1987] 3 F.C. 329 Tenenbaum v. Air Canada, Canadian Transportation Agency, Decision No. 219-A-2009 Tipple v. Deputy Head (Department of Public Works and Government Services), 2009 PSLRB 110 Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 Toronto Star Newspapers Ltd. v. Canada, 2007 FC 128 227 This page was intentionally left blank. 228 This page was intentionally left blank. 229 This page was intentionally left blank. 230 Appendix “A” Statutes and Regulations 53 CONSTITUTION ACT, 1982 (80) PART I CANADIAN CHARTER OF RIGHTS AND FREEDOMS Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law: GUARANTEE OF RIGHTS AND FREEDOMS Rights and freedoms in Canada 1. The Canadian Charter of Rights and Freedoms guarantees the rights and free- doms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. FUNDAMENTAL FREEDOMS Fundamental freedoms 2. Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association. (80) Enacted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.), which came into force on April 17, 1982. The Canada Act 1982, other than Schedules A and B thereto, reads as follows: An Act to give effect to a request by the Senate and House of Commons of Canada Whereas Canada has requested and consented to the enactment of an Act of the Parliament of the United King- dom to give effect to the provisions hereinafter set forth and the Senate and the House of Commons of Canada in Parliament assembled have submitted an address to Her Majesty requesting that Her Majesty may graciously be pleased to cause a Bill to be laid before the Parliament of the United Kingdom for that purpose. Be it therefore enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. The Constitution Act, 1982 set out in Schedule B to this Act is hereby enacted for and shall have the force of law in Canada and shall come into force as provided in that Act. 2. No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law. 3. So far as it is not contained in Schedule B, the French version of this Act is set out in Schedule A to this Act and has the same authority in Canada as the English version thereof. 4. This Act may be cited as the Canada Act 1982. 231 53 LOI CONSTITUTIONNELLE DE 1982 (80) PARTIE I CHARTE CANADIENNE DES DROITS ET LIBERTÉS Attendu que le Canada est fondé sur des principes qui reconnaissent la supréma- tie de Dieu et la primauté du droit : GARANTIE DES DROITS ET LIBERTÉS Droits et libertés au Canada 1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des li- mites qui soient raisonnables et dont la justification puisse se démontrer dans le cadre d’une société libre et démocratique. LIBERTÉS FONDAMENTALES Libertés fondamentales 2. Chacun a les libertés fondamentales suivantes : a) liberté de conscience et de religion; b) liberté de pensée, de croyance, d’opinion et d’expression, y compris la liberté de la presse et des autres moyens de communication; (80) Édictée comme l’annexe B de la Loi de 1982 sur le Canada, 1982, ch. 11 (R.-U.), entrée en vigueur le 17 avril 1982. Texte de la Loi de 1982 sur le Canada, à l’exception de l’annexe B : ANNEXE A — SCHEDULE A Loi donnant suite à une demande du Sénat et de la Chambre des communes du Canada Sa Très Excellente Majesté la Reine, considérant : qu’à la demande et avec le consentement du Canada, le Parlement du Royaume-Uni est invité à adopter une loi visant à donner effet aux dispositions énoncées ci-après et que le Sénat et la Chambre des communes du Canada réunis en Parlement ont présenté une adresse demandant à Sa Très Gracieuse Majesté de bien vouloir faire dépo- ser devant le Parlement du Royaume-Uni un projet de loi à cette fin, sur l’avis et du consentement des Lords spirituels et temporels et des Communes réunis en Parlement, et par l’autorité de celui-ci, édicte : 1. La Loi constitutionnelle de 1982, énoncée à l’annexe B, est édictée pour le Canada et y a force de loi. Elle entre en vigueur conformément à ses dispositions. 2. Les lois adoptées par le Parlement du Royaume-Uni après l’entrée en vigueur de la Loi constitutionnelle de 1982 ne font pas partie du droit du Canada. 3. La partie de la version française de la présente loi qui figure à l’annexe A a force de loi au Canada au même titre que la version anglaise correspondante. 4. Titre abrégé de la présente loi : Loi de 1982 sur le Canada. 232 Constitution Act, 1982 60 all their children receive primary and secondary school instruction in the same lan- guage. Application where numbers warrant (3) The right of citizens of Canada under subsections (1) and (2) to have their children receive primary and secondary school instruction in the language of the English or French linguistic minority population of a province (a) applies wherever in the province the number of children of citizens who have such a right is sufficient to warrant the provision to them out of public funds of minority language instruction; and (b) includes, where the number of those children so warrants, the right to have them receive that instruction in minority language educational facilities provided out of public funds. ENFORCEMENT Enforcement of guaranteed rights and freedoms 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. Exclusion of evidence bringing administration of justice into disrepute (2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the ad- ministration of justice into disrepute. 233 Loi constitutionnelle de 1982 60 cette instruction est celle de la minorité francophone ou anglophone de la pro- vince, ont, dans l’un ou l’autre cas, le droit d’y faire instruire leurs enfants, aux niveaux primaire et secondaire, dans cette langue. (93) Continuité d’emploi de la langue d’instruction (2) Les citoyens canadiens dont un enfant a reçu ou reçoit son instruction, au ni- veau primaire ou secondaire, en français ou en anglais au Canada ont le droit de faire instruire tous leurs enfants, aux niveaux primaire et secondaire, dans la langue de cette instruction. Justification par le nombre (3) Le droit reconnu aux citoyens canadiens par les paragraphes (1) et (2) de faire instruire leurs enfants, aux niveaux primaire et secondaire, dans la langue de la minorité francophone ou anglophone d’une province : a) s’exerce partout dans la province où le nombre des enfants des citoyens qui ont ce droit est suffisant pour justifier à leur endroit la prestation, sur les fonds publics, de l’instruction dans la langue de la minorité; b) comprend, lorsque le nombre de ces enfants le justifie, le droit de les faire ins- truire dans des établissements d’enseignement de la minorité linguistique finan- cés sur les fonds publics. RECOURS Recours en cas d’atteinte aux droits et libertés 24. (1) Toute personne, victime de violation ou de négation des droits ou libertés qui lui sont garantis par la présente charte, peut s’adresser à un tribunal compétent pour obtenir la réparation que le tribunal estime convenable et juste eu égard aux circonstances. Irrecevabilité d’éléments de preuve qui risqueraient de déconsidérer l’administration de la justice (2) Lorsque, dans une instance visée au paragraphe (1), le tribunal a conclu que des éléments de preuve ont été obtenus dans des conditions qui portent atteinte aux droits ou libertés garantis par la présente charte, ces éléments de preuve sont écartés s’il est établi, eu égard aux circonstances, que leur utilisation est susceptible de dé- considérer l’administration de la justice. (93) L’alinéa 23(1)a) n’est pas en vigueur pour le Québec. Voir l’article 59, ci-dessous. 234 Current to November 26, 2013 Last amended on June 26, 2013 À jour au 26 novembre 2013 Dernière modification le 26 juin 2013 Published by the Minister of Justice at the following address: http://laws-lois.justice.gc.ca Publié par le ministre de la Justice à l’adresse suivante : http://lois-laws.justice.gc.ca CANADA CONSOLIDATION Canada Transportation Act CODIFICATION Loi sur les transports au Canada S.C. 1996, c. 10 L.C. 1996, ch. 10 235 1 S.C. 1996, c. 10 L.C. 1996, ch. 10 An Act to continue the National Transportation Agency as the Canadian Transportation Agency, to consolidate and revise the National Transportation Act, 1987 and the Railway Act and to amend or repeal other Acts as a consequence Loi maintenant l’Office national des transports sous le nom d’Office des transports du Canada, codifiant et remaniant la Loi de 1987 sur les transports nationaux et la Loi sur les chemins de fer et modifiant ou abrogeant certaines lois [Assented to 29th May 1996] [Sanctionnée le 29 mai 1996] Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: Sa Majesté, sur l’avis et avec le consente- ment du Sénat et de la Chambre des communes du Canada, édicte : SHORT TITLE TITRE ABRÉGÉ Short title 1. This Act may be cited as the Canada Transportation Act. 1. Loi sur les transports au Canada. Titre abrégé HER MAJESTY SA MAJESTÉ Binding on Her Majesty 2. This Act is binding on Her Majesty in right of Canada or a province. 2. La présente loi lie Sa Majesté du chef du Canada ou d’une province. Obligation de Sa Majesté APPLICATION APPLICATION Application generally 3. This Act applies in respect of transporta- tion matters under the legislative authority of Parliament. 3. La présente loi s’applique aux questions de transport relevant de la compétence législa- tive du Parlement. Champ d’application Conflicts 4. (1) Subject to subsection (2), where there is a conflict between any order or regulation made under this Act in respect of a particular mode of transportation and any rule, order or regulation made under any other Act of Parlia- ment in respect of that particular mode of trans- portation, the order or regulation made under this Act prevails. 4. (1) Sous réserve du paragraphe (2), les arrêtés ou règlements pris sous le régime de la présente loi à l’égard d’un mode de transport l’emportent sur les règles, arrêtés ou règlements incompatibles pris sous celui d’autres lois fédé- rales. Incompatibilité Competition Act (2) Subject to subsection (3), nothing in or done under the authority of this Act, other than Division IV of Part III, affects the operation of the Competition Act. (2) Sous réserve du paragraphe (3), les dis- positions de la présente loi — sauf celles de la section IV de la partie III — et les actes accom- plis sous leur régime ne portent pas atteinte à l’application de la Loi sur la concurrence. Loi sur la concurrence 236 Canada Transportation — November 26, 2013 2 International agreements respecting air services (3) In the event of any inconsistency or con- flict between an international agreement or convention respecting air services to which Canada is a party and the Competition Act, the provisions of the agreement or convention pre- vail to the extent of the inconsistency or con- flict. 1996, c. 10, s. 4; 2007, c. 19, s. 1. (3) En cas d’incompatibilité ou de conflit entre une convention internationale ou un ac- cord international sur les services aériens dont le Canada est signataire et les dispositions de la Loi sur la concurrence, la convention ou l’ac- cord l’emporte dans la mesure de l’incompati- bilité ou du conflit. 1996, ch. 10, art. 4; 2007, ch. 19, art. 1. Conventions ou accords internationaux sur les services aériens NATIONAL TRANSPORTATION POLICY POLITIQUE NATIONALE DES TRANSPORTS Declaration 5. It is declared that a competitive, econom- ic and efficient national transportation system that meets the highest practicable safety and se- curity standards and contributes to a sustainable environment and makes the best use of all modes of transportation at the lowest total cost is essential to serve the needs of its users, ad- vance the well-being of Canadians and enable competitiveness and economic growth in both urban and rural areas throughout Canada. Those objectives are most likely to be achieved when (a) competition and market forces, both within and among the various modes of transportation, are the prime agents in pro- viding viable and effective transportation services; (b) regulation and strategic public interven- tion are used to achieve economic, safety, se- curity, environmental or social outcomes that cannot be achieved satisfactorily by competi- tion and market forces and do not unduly favour, or reduce the inherent advantages of, any particular mode of transportation; (c) rates and conditions do not constitute an undue obstacle to the movement of traffic within Canada or to the export of goods from Canada; (d) the transportation system is accessible without undue obstacle to the mobility of persons, including persons with disabilities; and (e) governments and the private sector work together for an integrated transportation sys- tem. 1996, c. 10, s. 5; 2007, c. 19, s. 2. 5. Il est déclaré qu’un système de transport national compétitif et rentable qui respecte les plus hautes normes possibles de sûreté et de sé- curité, qui favorise un environnement durable et qui utilise tous les modes de transport au mieux et au coût le plus bas possible est essen- tiel à la satisfaction des besoins de ses usagers et au bien-être des Canadiens et favorise la compétitivité et la croissance économique dans les régions rurales et urbaines partout au Canada. Ces objectifs sont plus susceptibles d’être atteints si : a) la concurrence et les forces du marché, au sein des divers modes de transport et entre eux, sont les principaux facteurs en jeu dans la prestation de services de transport viables et efficaces; b) la réglementation et les mesures pu- bliques stratégiques sont utilisées pour l’ob- tention de résultats de nature économique, environnementale ou sociale ou de résultats dans le domaine de la sûreté et de la sécurité que la concurrence et les forces du marché ne permettent pas d’atteindre de manière sa- tisfaisante, sans pour autant favoriser indûment un mode de transport donné ou en réduire les avantages inhérents; c) les prix et modalités ne constituent pas un obstacle abusif au trafic à l’intérieur du Canada ou à l’exportation des marchandises du Canada; d) le système de transport est accessible sans obstacle abusif à la circulation des per- sonnes, y compris les personnes ayant une déficience; e) les secteurs public et privé travaillent en- semble pour le maintien d’un système de transport intégré. 1996, ch. 10, art. 5; 2007, ch. 19, art. 2. Déclaration 237 Transports au Canada — 26 novembre 2013 3 INTERPRETATION DÉFINITIONS Definitions 6. In this Act, “Agency” « Office» “Agency” means the Canadian Transportation Agency continued by subsection 7(1); “carrier” « transporteur » “carrier” means a person who is engaged in the transport of goods or passengers by any means of transport under the legislative authority of Parliament; “Chairperson” «président » “Chairperson” means the Chairperson of the Agency; “goods” «marchandises » “goods” includes rolling stock and mail; “member” « membre » “member” means a member of the Agency ap- pointed under paragraph 7(2)(a) and includes a temporary member; “Minister” « ministre » “Minister” means the Minister of Transport; “rolling stock” « matériel roulant » “rolling stock” includes a locomotive, engine, motor car, tender, snow-plough, flanger and any car or railway equipment that is designed for movement on its wheels on the rails of a railway; “shipper” « expéditeur » “shipper” means a person who sends or re- ceives goods by means of a carrier or intends to do so; “sitting day of Parliament” « jour de séance » “sitting day of Parliament” means a day on which either House of Parliament sits; “superior court” « cour supérieure» “superior court” means (a) in Ontario, the Superior Court of Justice, (b) in Quebec, the Superior Court, (c) in New Brunswick, Manitoba, Saskatchewan and Alberta, the Court of Queen’s Bench, (d) in Nova Scotia, British Columbia, Yukon and the Northwest Territories, the Supreme Court, (e) in Prince Edward Island and Newfound- land, the Trial Division of the Supreme Court, and (f) in Nunavut, the Nunavut Court of Justice; “temporary member” « membre temporaire » “temporary member” means a temporary mem- ber of the Agency appointed under subsection 9(1); 6. Les définitions qui suivent s’appliquent à la présente loi. Définitions « cour supérieure » a) La Cour supérieure de justice de l’Onta- rio; b) la Cour supérieure du Québec; c) la Cour du Banc de la Reine du Nouveau- Brunswick, du Manitoba, de la Saskatche- wan ou de l’Alberta; d) la Cour suprême de la Nouvelle-Écosse, de la Colombie-Britannique, du Yukon ou des Territoires du Nord-Ouest; e) la section de première instance de la Cour suprême de l’Île-du-Prince-Édouard ou de Terre-Neuve; f) la Cour de justice du Nunavut. « cour supérieure » “superior court” « expéditeur » Personne qui expédie des mar- chandises par transporteur, ou en reçoit de ce- lui-ci, ou qui a l’intention de le faire. « expéditeur » “shipper” « jour de séance » Tout jour où l’une ou l’autre chambre du Parlement siège. «jour de séance » “sitting day of Parliament” « marchandises » Y sont assimilés le matériel roulant et le courrier. « marchandises » “goods” « matériel roulant » Toute sorte de voitures et de matériel muni de roues destinés à servir sur les rails d’un chemin de fer, y compris les loco- motives, machines actionnées par quelque force motrice, voitures automotrices, tenders, chasse- neige et flangers. « matériel roulant » “rolling stock” « membre » Tout membre de l’Office nommé en vertu du paragraphe 7(2) et tout membre temporaire de l’Office. « membre » “member” « membre temporaire » Tout membre tempo- raire de l’Office nommé en vertu du paragraphe 9(1). « membre temporaire» “temporary member” « ministre » Le ministre des Transports. « ministre» “Minister” « Office » L’Office des transports du Canada, maintenu par le paragraphe 7(1). «Office » “Agency” « président » Le président de l’Office. « président » “Chairperson” « transporteur » Personne se livrant au transport de passagers ou de marchandises par un moyen «transporteur » “carrier” 238 Canada Transportation — November 26, 2013 4 “Vice- Chairperson” « vice- président » “Vice-Chairperson” means the Vice-Chairper- son of the Agency. 1996, c. 10, s. 6; 1998, c. 30, ss. 13(F), 15(E); 1999, c. 3, s. 20; 2002, c. 7, s. 114(E). de transport assujetti à la compétence législa- tive du Parlement. « vice-président » Le vice-président de l’Office. 1996, ch. 10, art. 6; 1998, ch. 30, art. 13(F) et 15(A); 1999, ch. 3, art. 20; 2002, ch. 7, art. 114(A). « vice- président » “Vice- Chairperson” PART I PARTIE I ADMINISTRATION ADMINISTRATION CANADIAN TRANSPORTATION AGENCY OFFICE DES TRANSPORTS DU CANADA Continuation and Organization Maintien et composition Agency continued 7. (1) The agency known as the National Transportation Agency is continued as the Canadian Transportation Agency. 7. (1) L’Office national des transports est maintenu sous le nom d’Office des transports du Canada. Maintien de l’Office Composition of Agency (2) The Agency shall consist of not more than five members appointed by the Governor in Council, and such temporary members as are appointed under subsection 9(1), each of whom must, on appointment or reappointment and while serving as a member, be a Canadian citi- zen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act. (2) L’Office est composé, d’une part, d’au plus cinq membres nommés par le gouverneur en conseil et, d’autre part, des membres tempo- raires nommés en vertu du paragraphe 9(1). Tout membre doit, du moment de sa nomina- tion, être et demeurer un citoyen canadien ou un résident permanent au sens du paragraphe 2(1) de la Loi sur l’immigration et la protection des réfugiés. Composition Chairperson and Vice- Chairperson (3) The Governor in Council shall designate one of the members appointed under paragraph (2)(a) to be the Chairperson of the Agency and one of the other members appointed under that paragraph to be the Vice-Chairperson of the Agency. 1996, c. 10, s. 7; 2001, c. 27, s. 221; 2007, c. 19, s. 3. (3) Le gouverneur en conseil choisit le pré- sident et le vice-président de l’Office parmi les membres nommés en vertu du paragraphe (2). 1996, ch. 10, art. 7; 2001, ch. 27, art. 221; 2007, ch. 19, art. 3. Président et vice-président Term of members 8. (1) Each member appointed under para- graph 7(2)(a) shall hold office during good be- haviour for a term of not more than five years and may be removed for cause by the Governor in Council. 8. (1) Les membres nommés en vertu du pa- ragraphe 7(2) le sont à titre inamovible pour un mandat d’au plus cinq ans, sous réserve de ré- vocation motivée par le gouverneur en conseil. Durée du mandat Reappointment (2) A member appointed under paragraph 7(2)(a) is eligible to be reappointed on the ex- piration of a first or subsequent term of office. (2) Les mandats sont renouvelables. Renouvellement du mandat Continuation in office (3) If a member appointed under subsection 7(2) ceases to hold office, the Chairperson may authorize the member to continue to hear any matter that was before the member on the ex- piry of the member’s term of office and that member is deemed to be a member of the Agency, but that person’s status as a member does not preclude the appointment of up to five members under subsection 7(2) or up to three temporary members under subsection 9(1). 1996, c. 10, s. 8; 2007, c. 19, s. 4. (3) Le président peut autoriser un membre nommé en vertu du paragraphe 7(2) qui cesse d’exercer ses fonctions à continuer, après la date d’expiration de son mandat, à entendre toute question dont il se trouve saisi à cette date. À cette fin, le membre est réputé être membre de l’Office mais son statut n’empêche pas la nomination de cinq membres en vertu du paragraphe 7(2) ou de trois membres tempo- raires en vertu du paragraphe 9(1). 1996, ch. 10, art. 8; 2007, ch. 19, art. 4. Continuation de mandat 239 Transports au Canada — 26 novembre 2013 5 Temporary members 9. (1) The Minister may appoint temporary members of the Agency from the roster of indi- viduals established by the Governor in Council under subsection (2). 9. (1) Le ministre peut nommer des membres à titre temporaire à partir d’une liste de personnes établie par le gouverneur en conseil au titre du paragraphe (2). Membres temporaires Roster (2) The Governor in Council may appoint any individual to a roster of candidates for the purpose of subsection (1). (2) Pour l’application du paragraphe (1), le gouverneur en conseil peut nommer les per- sonnes à inscrire sur la liste de candidats qui y est prévue. Liste Maximum number (3) Not more than three temporary members shall hold office at any one time. (3) L’Office ne peut compter plus de trois membres temporaires. Nombre maximal Term of temporary members (4) A temporary member shall hold office during good behaviour for a term of not more than one year and may be removed for cause by the Governor in Council. (4) Les membres temporaires sont nommés à titre inamovible pour un mandat d’au plus un an, sous réserve de révocation motivée par le gouverneur en conseil. Durée du mandat No reappoint- ment (5) A person who has served two consecu- tive terms as a temporary member is not, during the twelve months following the completion of the person’s second term, eligible to be reap- pointed to the Agency as a temporary member. (5) Les membres temporaires ayant occupé leur charge pendant deux mandats consécutifs ne peuvent, dans les douze mois qui suivent, re- cevoir un nouveau mandat. Renouvellement du mandat Members — conflicts of interest 10. (1) A member appointed under para- graph 7(2)(a) shall not, directly or indirectly, as owner, shareholder, director, officer, partner or otherwise, (a) be engaged in a transportation undertak- ing or business; or (b) have an interest in a transportation un- dertaking or business or an interest in the manufacture or distribution of transportation plant or equipment, unless the distribution is merely incidental to the general merchandis- ing of goods. 10. (1) Les membres nommés en vertu du paragraphe 7(2) ne peuvent, directement ou in- directement, à titre de propriétaire, d’action- naire, d’administrateur, de dirigeant, d’associé ou autre : a) s’occuper d’une entreprise ou d’une ex- ploitation de transport; b) avoir des intérêts dans une entreprise ou exploitation de transport ou dans la fabrica- tion ou la distribution de matériel de trans- port, sauf si la distribution n’a qu’un carac- tère secondaire par rapport à l’ensemble des activités de commercialisation des marchan- dises. Conflits d’intérêts : membres Temporary members may not hold other office (2) During the term of office of a temporary member, the member shall not accept or hold any office or employment that is inconsistent with the member’s duties under this Act. (2) Les membres temporaires ne peuvent ac- cepter ni occuper une charge ou un emploi in- compatible avec les attributions que leur confère la présente loi. Conflits d’intérêts : membres temporaires Disposal of conflict of interest (3) Where an interest referred to in subsec- tion (1) vests in a member appointed under paragraph 7(2)(a) for the benefit of the member by will or succession, the interest shall, within three months after the vesting, be absolutely disposed of by the member. (3) Le membre nommé en vertu du para- graphe 7(2) qui est investi d’intérêts visés au paragraphe (1) par l’ouverture d’une succession doit les céder entièrement dans les trois mois suivant la saisine. Cession d’intérêts Remuneration Rémunération Remuneration 11. (1) A member shall be paid such remu- neration and allowances as may be fixed by the Governor in Council. 11. (1) Les membres reçoivent la rémunéra- tion et touchent les indemnités que peut fixer le gouverneur en conseil. Rémunération et indemnités 240 Canada Transportation — November 26, 2013 6 Expenses (2) Each member is entitled to be paid rea- sonable travel and living expenses incurred by the member in carrying out duties under this Act or any other Act of Parliament while absent from the member’s ordinary place of work. (2) Les membres ont droit aux frais de dé- placement et de séjour entraînés par l’exercice, hors de leur lieu de travail habituel, des fonc- tions qui leur sont confiées en application de la présente loi ou de toute autre loi fédérale. Frais de déplacement Members — retirement pensions 12. (1) A member appointed under para- graph 7(2)(a) is deemed to be employed in the public service for the purposes of the Public Service Superannuation Act. 12. (1) Les membres nommés en vertu du paragraphe 7(2) sont réputés appartenir à la fonction publique pour l’application de la Loi sur la pension de la fonction publique. Pensions de retraite des membres Temporary members not included (2) A temporary member is deemed not to be employed in the public service for the pur- poses of the Public Service Superannuation Act unless the Governor in Council, by order, deems the member to be so employed for those purposes. (2) Sauf décret prévoyant le contraire, les membres temporaires sont réputés ne pas ap- partenir à la fonction publique pour l’applica- tion de la Loi sur la pension de la fonction pu- blique. Membres temporaires Accident compensation (3) For the purposes of the Government Em- ployees Compensation Act and any regulation made pursuant to section 9 of the Aeronautics Act, a member is deemed to be an employee in the federal public administration. 1996, c. 10, s. 12; 2003, c. 22, ss. 224(E), 225(E). (3) Pour l’application de la Loi sur l’indem- nisation des agents de l’État et des règlements pris en vertu de l’article 9 de la Loi sur l’aéro- nautique, les membres sont réputés appartenir à l’administration publique fédérale. 1996, ch. 10, art. 12; 2003, ch. 22, art. 224(A) et 225(A). Indemnisation Chairperson Président Duties of Chairperson 13. The Chairperson is the chief executive officer of the Agency and has the supervision over and direction of the work of the members and its staff, including the apportionment of work among the members and the assignment of members to deal with any matter before the Agency. 13. Le président est le premier dirigeant de l’Office; à ce titre, il assure la direction et le contrôle de ses travaux et la gestion de son per- sonnel et procède notamment à la répartition des tâches entre les membres et à la désignation de ceux qui traitent des questions dont est saisi l’Office. Pouvoirs et fonctions Absence of Chairperson 14. In the event of the absence or incapacity of the Chairperson or if the office of Chairper- son is vacant, the Vice-Chairperson has all the powers and shall perform all the duties and functions of the Chairperson. 14. En cas d’absence ou d’empêchement du président ou de vacance de son poste, la prési- dence est assumée par le vice-président. Intérim du président Absence of both Chairperson and Vice- Chairperson 15. The Chairperson may authorize one or more of the members to act as Chairperson for the time being if both the Chairperson and Vice-Chairperson are absent or unable to act. 15. Le président peut habiliter un ou plu- sieurs membres à assumer la présidence en pré- vision de son absence ou de son empêchement, et de ceux du vice-président. Choix d’un autre intérimaire Quorum Quorum Quorum 16. (1) Subject to the Agency’s rules, two members constitute a quorum. 16. (1) Sous réserve des règles de l’Office, le quorum est constitué de deux membres. Quorum Quorum lost because of incapacity of member (2) Where a member who is conducting a hearing in respect of a matter becomes incapac- itated or dies during the hearing or after the conclusion of the hearing but before rendering a decision and quorum is lost as a result, the (2) En cas de décès ou d’empêchement d’un membre chargé d’une audience, pendant celle- ci ou entre la fin de l’audience et le prononcé de la décision, et de perte de quorum résultant de ce fait, le président peut, avec le consente- Perte de quorum due à un décès ou un empêchement 241 Transports au Canada — 26 novembre 2013 7 Chairperson may, with the consent of all the parties to the hearing, (a) if the incapacity or death occurs during the hearing, authorize another member to continue the hearing and render a decision, or (b) if the incapacity or death occurs after the conclusion of the hearing, authorize another member to examine the evidence presented at the hearing and render a decision, and in either case, the quorum in respect of the matter is deemed never to have been lost. ment des parties à l’audience, si le fait sur- vient : a) pendant l’audience, habiliter un autre membre à continuer l’audience et à rendre la décision; b) après la fin de l’audience, habiliter un autre membre à examiner la preuve présentée à l’audience et à rendre la décision. Dans l’une ou l’autre de ces éventualités, le quorum est réputé avoir toujours existé. Quorum not lost because of incapacity of member (3) Where a member who is conducting a hearing in respect of a matter becomes incapac- itated or dies during the hearing and quorum is not lost as a result, another member may be as- signed by the Chairperson to participate in the hearing and in the rendering of a decision. (3) En cas de décès ou d’empêchement, pen- dant une audience, du membre qui en est char- gé, sans perte de quorum résultant de ce fait, le président peut habiliter un autre membre à par- ticiper à l’audience et au prononcé de la déci- sion. Décès ou empêchement sans perte de quorum Rules Règles Rules 17. The Agency may make rules respecting (a) the sittings of the Agency and the carry- ing on of its work; (b) the manner of and procedures for dealing with matters and business before the Agency, including the circumstances in which hear- ings may be held in private; and (c) the number of members that are required to hear any matter or perform any of the functions of the Agency under this Act or any other Act of Parliament. 17. L’Office peut établir des règles concer- nant : a) ses séances et l’exécution de ses travaux; b) la procédure relative aux questions dont il est saisi, notamment pour ce qui est des cas de huis clos; c) le nombre de membres qui doivent en- tendre les questions ou remplir telles des fonctions de l’Office prévues par la présente loi ou une autre loi fédérale. Règles Head Office Siège de l’Office Head office 18. (1) The head office of the Agency shall be in the National Capital Region described in the schedule to the National Capital Act. 18. (1) Le siège de l’Office est fixé dans la région de la capitale nationale délimitée à l’an- nexe de la Loi sur la capitale nationale. Siège Residence of members (2) The members appointed under subsec- tion 7(2) shall reside in the National Capital Region described in the schedule to the Nation- al Capital Act or within any distance of it that the Governor in Council determines. 1996, c. 10, s. 18; 2007, c. 19, s. 5; 2008, c. 21, s. 61. (2) Les membres nommés au titre du para- graphe 7(2) résident dans la région de la capi- tale nationale délimitée à l’annexe de la Loi sur la capitale nationale ou dans la périphérie de cette région définie par le gouverneur en conseil. 1996, ch. 10, art. 18; 2007, ch. 19, art. 5; 2008, ch. 21, art. 61. Lieu de résidence des membres Staff Personnel Secretary, officers and employees 19. The Secretary of the Agency and the other officers and employees that are necessary for the proper conduct of the business of the 19. Le secrétaire de l’Office et le personnel nécessaire à l’exécution des travaux de celui-ci Secrétaire et personnel 242 Canada Transportation — November 26, 2013 8 Agency shall be appointed in accordance with the Public Service Employment Act. sont nommés conformément à la Loi sur l’em- ploi dans la fonction publique. Technical experts 20. The Agency may appoint and, subject to any applicable Treasury Board directive, fix the remuneration of experts or persons who have technical or special knowledge to assist the Agency in an advisory capacity in respect of any matter before the Agency. 20. L’Office peut nommer des experts ou autres spécialistes compétents pour le conseiller sur des questions dont il est saisi, et, sous ré- serve des instructions du Conseil du Trésor, fixer leur rémunération. Experts Records Registre Duties of Secretary 21. (1) The Secretary of the Agency shall (a) maintain a record in which shall be en- tered a true copy of every rule, order, deci- sion and regulation of the Agency and any other documents that the Agency requires to be entered in it; and (b) keep at the Agency’s office a copy of all rules, orders, decisions and regulations of the Agency and the records of proceedings of the Agency. 21. (1) Le secrétaire est chargé : a) de la tenue du registre du texte authen- tique des règles, arrêtés, règlements et déci- sions de l’Office et des autres documents dont celui-ci exige l’enregistrement; b) de la conservation, dans les bureaux de l’Office, d’un exemplaire des règles, arrêtés, règlements, décisions et procès-verbaux de celui-ci. Attributions du secrétaire Entries in record (2) The entry of a document in the record re- ferred to in paragraph (1)(a) shall constitute the original record of the document. (2) Le document enregistré en application de l’alinéa (1)a) en constitue l’original. Original Copies of documents obtainable 22. On the application of any person, and on payment of a fee fixed by the Agency, the Sec- retary of the Agency or, in the absence of the Secretary, the person assigned by the Chairper- son to act in the absence shall issue under the seal of the Agency to the applicant a certified copy of any rule, order, regulation or any other document that has been issued by the Agency. 22. Le secrétaire de l’Office, ou la personne chargée par le président d’assurer son intérim, délivre sous le sceau de l’Office, sur demande et contre paiement des droits fixés par celui-ci, des copies certifiées conformes des règles, arrê- tés, règlements ou autres documents de l’Of- fice. Copies conformes Judicial notice of documents 23. (1) Judicial notice shall be taken of a document issued by the Agency under its seal without proof of the signature or official char- acter of the person appearing to have signed it. 23. (1) Les documents délivrés par l’Office sous son sceau sont admis d’office en justice sans qu’il soit nécessaire de prouver l’authenti- cité de la signature qui y est apposée ou la qua- lité officielle du signataire. Admission d’office Evidence of deposited documents (2) A document purporting to be certified by the Secretary of the Agency as being a true copy of a document deposited or filed with or approved by the Agency, or any portion of such a document, is evidence that the document is so deposited, filed or approved and, if stated in the certificate, of the time when the document was deposited, filed or approved. (2) Le document censé être en tout ou en partie la copie certifiée conforme, par le secré- taire de l’Office, d’un document déposé auprès de celui-ci, ou approuvé par celui-ci, fait foi du dépôt ou de l’approbation ainsi que de la date, si elle est indiquée sur la copie, de ce dépôt ou de cette approbation. Preuve Powers of Agency Attributions de l’Office Policy governs Agency 24. The powers, duties and functions of the Agency respecting any matter that comes with- in its jurisdiction under an Act of Parliament 24. Les attributions de l’Office relatives à une affaire dont il est saisi en application d’une loi fédérale sont exercées en conformité avec Directives 243 Transports au Canada — 26 novembre 2013 9 shall be exercised and performed in conformity with any policy direction issued to the Agency under section 43. les directives générales qui lui sont données en vertu de l’article 43. Agency powers in general 25. The Agency has, with respect to all mat- ters necessary or proper for the exercise of its jurisdiction, the attendance and examination of witnesses, the production and inspection of documents, the enforcement of its orders or regulations and the entry on and inspection of property, all the powers, rights and privileges that are vested in a superior court. 25. L’Office a, à toute fin liée à l’exercice de sa compétence, la comparution et l’interro- gatoire des témoins, la production et l’examen des pièces, l’exécution de ses arrêtés ou règle- ments et la visite d’un lieu, les attributions d’une cour supérieure. Pouvoirs généraux Power to award costs 25.1 (1) Subject to subsections (2) to (4), the Agency has all the powers that the Federal Court has to award costs in any proceeding be- fore it. 25.1 (1) Sous réserve des paragraphes (2) à (4), l’Office a tous les pouvoirs de la Cour fé- dérale en ce qui a trait à l’adjudication des frais relativement à toute procédure prise devant lui. Pouvoirs relatifs à l’adjudication des frais Costs may be fixed or taxed (2) Costs may be fixed in any case at a sum certain or may be taxed. (2) Les frais peuvent être fixés à une somme déterminée, ou taxés. Frais fixés ou taxés Payment (3) The Agency may direct by whom and to whom costs are to be paid and by whom they are to be taxed and allowed. (3) L’Office peut ordonner par qui et à qui les frais doivent être payés et par qui ils doivent être taxés et alloués. Paiement Scale (4) The Agency may make rules specifying a scale under which costs are to be taxed. (4) L’Office peut, par règle, fixer un tarif de taxation des frais. Tarif Compelling observance of obligations 26. The Agency may require a person to do or refrain from doing any thing that the person is or may be required to do or is prohibited from doing under any Act of Parliament that is administered in whole or in part by the Agency. 26. L’Office peut ordonner à quiconque d’accomplir un acte ou de s’en abstenir lorsque l’accomplissement ou l’abstention sont prévus par une loi fédérale qu’il est chargé d’appliquer en tout ou en partie. Pouvoir de contrainte Relief 27. (1) On an application made to the Agen- cy, the Agency may grant the whole or part of the application, or may make any order or grant any further or other relief that to the Agency seems just and proper. 27. (1) L’Office peut acquiescer à tout ou partie d’une demande ou prendre un arrêté, ou, s’il l’estime indiqué, accorder une réparation supplémentaire ou substitutive. Réparation (2) and (3) [Repealed, 2008, c. 5, s. 1] (2) et (3) [Abrogés, 2008, ch. 5, art. 1] Amendments (4) The Agency may, on terms or otherwise, make or allow any amendments in any proceed- ings before it. (4) L’Office peut, notamment sous condi- tion, apporter ou autoriser toute modification aux procédures prises devant lui. Modification (5) [Repealed, 2008, c. 5, s. 1] 1996, c. 10, s. 27; 2008, c. 5, s. 1. (5) [Abrogé, 2008, ch. 5, art. 1] 1996, ch. 10, art. 27; 2008, ch. 5, art. 1. Orders 28. (1) The Agency may in any order direct that the order or a portion or provision of it shall come into force (a) at a future time, (b) on the happening of any contingency, event or condition specified in the order, or (c) on the performance, to the satisfaction of the Agency or a person named by it, of any 28. (1) L’Office peut, dans ses arrêtés, pré- voir une date déterminée pour leur entrée en vi- gueur totale ou partielle ou subordonner celle- ci à la survenance d’un événement, à la réalisation d’une condition ou à la bonne exé- cution, appréciée par lui-même ou son délégué, d’obligations qu’il aura imposées à l’intéressé; il peut en outre y prévoir une date déterminée pour leur cessation d’effet totale ou partielle ou Arrêtés 244 Canada Transportation — November 26, 2013 10 terms that the Agency may impose on an in- terested party, and the Agency may direct that the whole or any portion of the order shall have force for a limited time or until the happening of a speci- fied event. subordonner celle-ci à la survenance d’un évé- nement. Interim orders (2) The Agency may, instead of making an order final in the first instance, make an interim order and reserve further directions either for an adjourned hearing of the matter or for fur- ther application. (2) L’Office peut prendre un arrêté provi- soire et se réserver le droit de compléter sa dé- cision lors d’une audience ultérieure ou d’une nouvelle demande. Arrêtés provisoires Time for making decisions 29. (1) The Agency shall make its decision in any proceedings before it as expeditiously as possible, but no later than one hundred and twenty days after the originating documents are received, unless the parties agree to an exten- sion or this Act or a regulation made under sub- section (2) provides otherwise. 29. (1) Sauf indication contraire de la pré- sente loi ou d’un règlement pris en vertu du pa- ragraphe (2) ou accord entre les parties sur une prolongation du délai, l’Office rend sa décision sur toute affaire dont il est saisi avec toute la diligence possible dans les cent vingt jours sui- vant la réception de l’acte introductif d’ins- tance. Délai Period for specified classes (2) The Governor in Council may, by regu- lation, prescribe periods of less than one hun- dred and twenty days within which the Agency shall make its decision in respect of such class- es of proceedings as are specified in the regula- tion. (2) Le gouverneur en conseil peut, par règle- ment, imposer à l’Office un délai inférieur à cent vingt jours pour rendre une décision à l’égard des catégories d’affaires qu’il indique. Délai plus court Pending proceedings 30. The fact that a suit, prosecution or pro- ceeding involving a question of fact is pending in any court does not deprive the Agency of ju- risdiction to hear and determine the same ques- tion of fact. 30. L’Office a compétence pour statuer sur une question de fait, peu importe que celle-ci fasse l’objet d’une poursuite ou autre instance en cours devant un tribunal. Affaire en instance Fact finding is conclusive 31. The finding or determination of the Agency on a question of fact within its jurisdic- tion is binding and conclusive. 31. La décision de l’Office sur une question de fait relevant de sa compétence est définitive. Décision définitive Review of decisions and orders 32. The Agency may review, rescind or vary any decision or order made by it or may re-hear any application before deciding it if, in the opinion of the Agency, since the decision or or- der or the hearing of the application, there has been a change in the facts or circumstances per- taining to the decision, order or hearing. 32. L’Office peut réviser, annuler ou modi- fier ses décisions ou arrêtés, ou entendre de nouveau une demande avant d’en décider, en raison de faits nouveaux ou en cas d’évolution, selon son appréciation, des circonstances de l’affaire visée par ces décisions, arrêtés ou au- diences. Révision, annulation ou modification de décisions Enforcement of decision or order 33. (1) A decision or order of the Agency may be made an order of the Federal Court or of any superior court and is enforceable in the same manner as such an order. 33. (1) Les décisions ou arrêtés de l’Office peuvent être homologués par la Cour fédérale ou une cour supérieure; le cas échéant, leur exécution s’effectue selon les mêmes modalités que les ordonnances de la cour saisie. Homologation Procedure (2) To make a decision or order an order of a court, either the usual practice and procedure of the court in such matters may be followed or the Secretary of the Agency may file with the (2) L’homologation peut se faire soit selon les règles de pratique et de procédure de la cour saisie applicables en l’occurrence, soit au moyen du dépôt, auprès du greffier de la cour Procédure 245 Transports au Canada — 26 novembre 2013 11 registrar of the court a certified copy of the de- cision or order, signed by the Chairperson and sealed with the Agency’s seal, at which time the decision or order becomes an order of the court. par le secrétaire de l’Office, d’une copie certi- fiée conforme de la décision ou de l’arrêté en cause, signée par le président et revêtue du sceau de l’Office. Effect of variation or rescission (3) Where a decision or order that has been made an order of a court is rescinded or varied by a subsequent decision or order of the Agen- cy, the order of the court is deemed to have been cancelled and the subsequent decision or order may be made an order of the court. (3) Les décisions ou arrêtés de l’Office qui annulent ou modifient des décisions ou arrêtés déjà homologués par une cour sont réputés an- nuler ces derniers et peuvent être homologués selon les mêmes modalités. Annulation ou modification Option to enforce (4) The Agency may, before or after one of its decisions or orders is made an order of a court, enforce the decision or order by its own action. 1996, c. 10, s. 33; 2002, c. 8, s. 122; 2006, c. 11, s. 17; 2007, c. 19, s. 6. (4) L’Office peut toujours faire exécuter lui- même ses décisions ou arrêtés, même s’ils ont été homologués par une cour. 1996, ch. 10, art. 33; 2002, ch. 8, art. 122; 2006, ch. 11, art. 17; 2007, ch. 19, art. 6. Faculté d’exécution Fees 34. (1) The Agency may, by rule, fix the fees that are to be paid to the Agency in respect of applications made to it, including applica- tions for licences or permits and applications for amendments to or for the renewal of li- cences or permits, and any other matters brought before or dealt with by the Agency. 34. (1) L’Office peut, par règle, établir les droits à lui verser relativement aux questions ou demandes dont il est saisi, notamment les de- mandes de licences ou de permis et les de- mandes de modification ou de renouvellement de ceux-ci. Droits Advance notice to Minister (2) The Agency shall give the Minister no- tice of every rule proposed to be made under subsection (1). (2) L’Office fait parvenir au ministre un avis relativement à toute règle qu’il entend prendre en vertu du paragraphe (1). Préavis Fees for witnesses 35. Every person summoned to attend be- fore the Agency under this Part or before a per- son making an inquiry under this Part shall re- ceive the fees and allowances for so doing that the Agency may, by regulation, prescribe. 35. Il est alloué à toute personne qui se rend à la convocation de l’Office ou d’un enquêteur, dans le cadre de la présente partie, les indemni- tés que l’Office peut fixer par règlement. Indemnité des témoins Approval of regulations required 36. (1) Every regulation made by the Agen- cy under this Act must be made with the ap- proval of the Governor in Council. 36. (1) Tout règlement pris par l’Office en vertu de la présente loi est subordonné à l’agré- ment du gouverneur en conseil. Agrément du gouverneur en conseil Advance notice of regulations (2) The Agency shall give the Minister no- tice of every regulation proposed to be made by the Agency under this Act. (2) L’Office fait parvenir au ministre un avis relativement à tout règlement qu’il entend prendre en vertu de la présente loi. Préavis au ministre Mediation Médiation Request by parties 36.1 (1) If there is a dispute concerning a matter within the Agency’s jurisdiction, all the parties to the dispute may, by agreement, make a request to the Agency for mediation. On re- ceipt of the request, the Agency shall refer the dispute for mediation. 36.1 (1) Les parties entre lesquelles survient un différend sur toute question relevant de la compétence de l’Office peuvent d’un commun accord faire appel à la médiation de celui-ci. Le cas échéant, l’Office renvoie sans délai le diffé- rend à la médiation. Demande des parties Appointment of mediator (2) When a dispute is referred for mediation, the Chairperson shall appoint one or two per- sons to mediate the dispute. (2) En cas de renvoi à la médiation par l’Of- fice, le président nomme une ou deux per- sonnes pour procéder à celle-ci. Nomination d’un médiateur 246 Current to J une 12, 2014 Last amended on J une 4, 2014 À jour au 12 juin 2014 Dernière modification le 4 juin 2014 Published by the Minister of J ustice at the following address: http://laws-lois.justice.gc.ca Publié par le ministre de la J ustice à l’adresse suivante : http://lois-laws.justice.gc.ca CANADA CONSOLIDATION Canadian Transportation Agency Rules (Dispute Proceedings and Certain Rules Applicable to All Proceedings) CODIFICATION Règles de l’Office des transports du Canada (Instances de règlement des différends et certaines règles applicables à toutes les instances) SOR/2014-104 DORS/2014-104 247 DORS/2014-104 — 12 juin 2014 3 réparation, avec ou sans conditions, en vue du règlement équitable des questions. Filing of Documents and Sending of Copy to Parties Dépôt de documents et envoi de copies aux autres parties Filing 7. (1) Any document filed under these Rules must be filed with the Secretary of the Agency. 7. (1) Le dépôt de documents au titre des présentes règles se fait auprès du secré- taire de l’Office. Dépôt Agency’s public record (2) All filed documents are placed on the Agency’s public record unless the per- son filing the document files, at the same time, a request for confidentiality under section 31 in respect of the document. (2) Les documents déposés sont versés aux archives publiques de l’Office, sauf si la personne qui dépose le document dépose au même moment une requête de confiden- tialité, en vertu de l’article 31, à l’égard du document. Archives publiques de l’Office Copy to parties 8. A person that files a document must, on the same day, send a copy of the docu- ment to each party or, if a party is repre- sented, to the party’s representative, except if the document is (a) a confidential version of a document in respect of which a request for confi- dentiality is filed under section 31; (b) an application; or (c) a position statement. 8. La personne qui dépose un document envoie le même jour une copie du docu- ment à chaque partie ou à son représentant, le cas échéant, sauf s’il s’agit : a) d’une version confidentielle d’un do- cument à l’égard duquel une requête de confidentialité a été déposée en vertu de l’article 31; b) d’une demande; c) d’un énoncé de position. Copie aux autres parties Means of transmission 9. Documents may be filed with the Agency and copies may be sent to the other parties by courrier, personal delivery, email, facsimile or other electronic means specified by the Agency. 9. Le dépôt de documents et l’envoi de copies aux autres parties peut se faire par remise en mains propres, par service de messagerie, par courriel, par télécopieur ou par tout autre moyen électronique que pré- cise l’Office. Modes de transmission Facsimile — cover page 10. A person that files or sends a docu- ment by facsimile must include a cover page indicating the total number of pages transmitted, including the cover page, and the name and telephone number of a con- tact person if problems occur in the trans- mission of the document. 10. La personne qui dépose ou transmet un document par télécopieur indique sur une page couverture le nombre total de pages transmises, y compris la page cou- verture, ainsi que le nom et le numéro de téléphone d’une personne à joindre en cas de difficultés de transmission. Télécopieur — page couverture Electronic transmission 11. (1) A document that is sent by email, facsimile or other electronic means 11. (1) Le document transmis par cour- riel, télécopieur ou tout autre moyen élec- Transmission électronique 248 SOR/2014-104 — June 12, 2014 6 tion from the Agency’s record if the person fails to file the verification. ne dépose pas l’attestation par affidavit ou par déclaration devant témoin. Representation and Change of Contact Information Représentation et changements des coordonnées Representative not a member of the bar 16. A person that is represented in a dis- pute proceeding by a person that is not a member of the bar of a province must au- thorize that person to act on their behalf by filing the information referred to in Sched- ule 4. 16. La personne qui, dans le cadre d’une instance de règlement des différends, est représentée par une personne qui n’est membre du barreau d’aucune province dé- pose une autorisation en ce sens, qui com- porte les éléments visés à l’annexe 4. Représentant — non-membre du barreau Change of contact information 17. A person must, if the contact infor- mation they provided to the Agency changes during the course of a dispute pro- ceeding, provide their new contact infor- mation to the Agency and the parties with- out delay. 17. La personne qui a fourni ses coor- données à l’Office et dont les coordonnées changent au cours d’une instance de règle- ment des différends fournit sans délai ses nouvelles coordonnées à l’Office et aux parties. Changement des coordonnées PLEADINGS ACTES DE PROCÉDURE Application Demande Filing of application 18. (1) Any application filed with the Agency must include the information re- ferred to in Schedule 5. 18. (1) Toute demande déposée auprès de l’Office comporte les éléments visés à l’annexe 5. Dépôt de la demande Application complete (2) If the application is complete, the parties are notified in writing that the ap- plication has been accepted. (2) Si la demande est complète, les par- ties sont avisées par écrit de l’acceptation de la demande. Demande complète Incomplete application (3) If the application is incomplete, the applicant is notified in writing and the ap- plicant must provide the missing informa- tion within 20 business days after the date of the notice. (3) Si la demande est incomplète, le de- mandeur en est avisé par écrit et dispose de vingt jours ouvrables suivant la date de l’avis pour la compléter. Demande incomplète Closure of file (4) If the applicant fails to provide the missing information within the time limit, the file is closed. (4) Si le demandeur ne complète pas la demande dans le délai imparti, le dossier est fermé. Fermeture du dossier New application (5) An applicant whose file is closed may file a new application in respect of the same matter. (5) Le demandeur dont le dossier est fermé peut déposer à nouveau une de- mande relativement à la même affaire. Nouvelle demande 249 DORS/2014-104 — 12 juin 2014 7 Answer Réponse Filing of answer 19. A respondent may file an answer to the application. The answer must be filed within 15 business days after the date of the notice indicating that the application has been accepted and must include the in- formation referred to in Schedule 6. 19. Le défendeur qui souhaite déposer une réponse le fait dans les quinze jours ouvrables suivant la date de l’avis d’accep- tation de la demande. La réponse comporte les éléments visés à l’annexe 6. Dépôt d’une réponse Reply Réplique Filing of reply 20. (1) An applicant may file a reply to the answer. The reply must be filed within five business days after the day on which they receive a copy of the answer and must include the information referred to in Schedule 7. 20. (1) Le demandeur qui souhaite dé- poser une réplique à la réponse le fait dans les cinq jours ouvrables suivant la date de réception de la copie de la réponse. La ré- plique comporte les éléments visés à l’an- nexe 7. Dépôt d’une réplique No new issues (2) The reply must not raise issues or arguments that are not addressed in the an- swer or introduce new evidence unless a request has been filed to that effect and the request has been granted by the Agency. (2) La réplique ne peut soulever des questions ou arguments qui ne sont pas abordés dans la réponse, ni introduire de nouvelle preuve, sauf sur autorisation de l’Office à la suite d’une requête déposée en ce sens. Nouvelles questions Intervention Intervention Filing of intervention 21. (1) An intervener may file an inter- vention. The intervention must be filed within five business days after the day on which their request to intervene is granted by the Agency and must include the infor- mation referred to in Schedule 8. 21. (1) L’intervenant qui souhaite dé- poser une intervention le fait dans les cinq jours ouvrables suivant la date à laquelle sa requête d’intervention a été accordée. L’in- tervention comporte les éléments visés à l’annexe 8. Dépôt de l’intervention Participation rights (2) An intervener’s participation is lim- ited to the participation rights granted by the Agency. (2) La participation de l’intervenant se limite aux droits de participation que lui accorde l’Office. Droits de participation Response to intervention 22. An applicant or a respondent that is adverse in interest to an intervener may file a response to the intervention. The re- sponse must be filed within five business days after the day on which they receive a copy of the intervention and must include the information referred to in Schedule 9. 22. Le demandeur ou le défendeur qui a des intérêts opposés à ceux d’un interve- nant et qui souhaite déposer une réponse à l’intervention le fait dans les cinq jours ou- vrables suivant la date de réception de la copie de l’intervention. La réponse à l’in- tervention comporte les éléments visés à l’annexe 9. Réponse à l’intervention 250 SOR/2014-104 — June 12, 2014 14 the day on which they receive a copy of the response and must include the information referred to in Schedule 15. après la date de réception de la copie de la réponse. La réplique comporte les éléments visés à l’annexe 15. No new issues (4) The reply must not raise issues or arguments that are not addressed in the re- sponse or introduce new evidence unless a request has been filed to that effect and the request has been granted by the Agency. (4) La réplique ne peut soulever des questions ou arguments qui ne sont abordés dans la réponse, ni introduire de nouvelle preuve, sauf sur autorisation de l’Office à la suite d’une requête déposée en ce sens. Nouvelles questions Request for Confidentiality Requête de confidentialité Confidential treatment 31. (1) A person may file a request for confidentiality in respect of a document that they are filing. The request must in- clude the information referred to in Sched- ule 17 and must be accompanied by, for each document identified as containing confidential information, (a) one public version of the document from which the confidential information has been redacted; and (b) one confidential version of the docu- ment that identifies the confidential in- formation that has been redacted from the public version of the document and that includes, at the top of each page, the words: “CONTAINS CONFIDENTIAL INFORMATION” in capital letters. 31. (1) Toute personne peut déposer une requête de confidentialité portant sur un document qu’elle dépose. La requête comporte les éléments visés à l’annexe 17 et, pour chaque document désigné comme étant confidentiel : a) une version publique du document, de laquelle les renseignements confiden- tiels ont été supprimés; b) une version confidentielle du docu- ment, qui indique les passages qui ont été supprimés de la version publique du document et qui porte la mention « CONTIENT DES RENSEIGNE- MENTS CONFIDENTIELS » en lettres majuscules au haut de chaque page. Traitement confidentiel Agency’s record (2) The request for confidentiality and the public version of the document from which the confidential information has been redacted are placed on the Agency’s public record. The confidential version of the document is placed on the Agency’s confidential record pending a decision of the Agency on the request for confidential- ity. (2) La requête de confidentialité et la version publique du document de laquelle les renseignements confidentiels ont été supprimés sont versées aux archives pu- bliques de l’Office. La version confiden- tielle du document est versée aux archives confidentielles de l’Office en attendant que celui-ci statue sur la requête. Archives de l’Office Request for disclosure (3) Any party may oppose a request for confidentiality by filing a request for dis- closure. The request must be filed within five business days after the day on which they receive a copy of the request for con- (3) La partie qui souhaite s’opposer à une requête de confidentialité dépose une requête de communication dans les cinq jours ouvrables suivant la date de réception de la copie de la requête de confidentialité. Requête de communication 251 DORS/2014-104 — 12 juin 2014 15 fidentiality and must include the informa- tion referred to in Schedule 18. La requête de communication comporte les éléments visés à l’annexe 18. Response to request for disclosure (4) The person that filed the request for confidentiality may file a response to a re- quest for disclosure. The response must be filed within three business days after the day on which they receive a copy of the re- quest for disclosure and must include the information referred to in Schedule 14. (4) La personne ayant déposé la requête de confidentialité et qui souhaite déposer une réponse à une requête de communica- tion le fait dans les trois jours ouvrables suivant la date de réception de copie de la requête de communication. La réponse comporte les éléments visés à l’annexe 14. Réponse à la requête de communication Agency’s decision (5) The Agency may (a) if the Agency determines that the document is not relevant to the dispute proceeding, decide to not place the doc- ument on the Agency’s record; (b) if the Agency determines that the document is relevant to the dispute pro- ceeding and that no specific direct harm would likely result from its disclosure or that any demonstrated specific direct harm is not sufficient to outweigh the public interest in having it disclosed, de- cide to place the document on the Agen- cy’s public record; or (c) if the Agency determines that the document is relevant to the dispute pro- ceeding and that the specific direct harm likely to result from its disclosure justi- fies confidentiality, (i) decide to confirm the confidential- ity of the document or any part of it and keep the document or part of the document on the Agency’s confiden- tial record, (ii) decide to place a version of the document or any part of it from which the confidential information has been redacted on the Agency’s public record, (iii) decide to keep the document or any part of it on the Agency’s confi- (5) L’Office peut : a) s’il conclut que le document n’est pas pertinent au regard de l’instance de rè- glement des différends, décider de ne pas le verser aux archives de l’Office; b) s’il conclut que le document est perti- nent au regard de l’instance de règle- ment des différends et que sa communi- cation ne causerait vraisemblablement pas de préjudice direct précis ou que l’intérêt du public à ce qu’il soit commu- niqué l’emporte sur le préjudice direct précis qui pourrait en résulter, décider de le verser aux archives publiques de l’Of- fice; c) s’il conclut que le document est perti- nent au regard de l’instance de règle- ment des différends et que le préjudice direct précis que pourrait causer sa com- munication justifie le traitement confi- dentiel : (i) décider de confirmer le caractère confidentiel du document ou d’une partie de celui-ci et garder le docu- ment ou une partie de celui-ci dans ses archives confidentielles, (ii) décider qu’une version ou une partie du document, de laquelle les renseignements confidentiels ont été supprimés, soit versée à ses archives publiques, Décision de l’Office 252 SOR/2014-104 — June 12, 2014 16 dential record but require that the per- son requesting confidentiality provide a copy of the document or part of the document in confidence to any party to the dispute proceeding, or to certain of their advisors, experts and repre- sentatives, as specified by the Agen- cy, after the person requesting confi- dentiality has received a signed undertaking of confidentiality from the person to which the copy is to be provided, or (iv) make any other decision that it considers just and reasonable. (iii) décider de garder le document ou une partie de celui-ci dans ses ar- chives confidentielles, mais exiger que la personne qui demande la confi- dentialité fournisse une copie du do- cument ou une partie de celui-ci de fa- çon confidentielle à une partie à l’instance, à certains de ses conseillers, experts ou représentants, tel qu’il le précise, après que la per- sonne qui demande la confidentialité ait reçu un engagement de non-divul- gation signé de chaque personne à qui le document devra être envoyé, (iv) rendre toute autre décision qu’il estime juste et raisonnable. Filing of undertaking of confidentiality (6) The original copy of the undertaking of confidentiality must be filed with the Agency. (6) L’original de l’engagement de non- divulgation est déposé auprès de l’Office. Dépôt de l’engagement de non-divulgation Request to Require Party to Provide Complete Response Requête visant à obliger une partie à fournir une réponse complète à l’avis Requirement to respond 32. (1) A party that has given notice under subsection 24(1) may, if they are not satisfied with the response to the notice or if they wish to contest an objection to their request, file a request to require the party to which the notice was directed to provide a complete response. The request must be filed within two business days after the day on which they receive a copy of the re- sponse to the notice or the objection, as the case may be, and must include the informa- tion referred to in Schedule 13. 32. (1) La partie qui a donné un avis en vertu du paragraphe 24(1) et qui est insatis- faite des réponses à l’avis ou qui souhaite contester l’opposition à sa demande peut déposer une requête pour demander que la partie à qui l’avis a été donné fournisse une réponse complète. La requête est déposée dans les deux jours ouvrables suivant la date de réception de la copie des réponses à l’avis ou de l’opposition et comporte les éléments visés à l’annexe 13. Obligation de répondre Agency’s decision (2) The Agency may do any of the fol- lowing: (a) require that a question be answered in full or in part; (b) require that a document be provided; (2) L’Office peut : a) exiger qu’il soit répondu à la ques- tion en tout ou en partie; b) exiger la production d’un document; Décisions de l’Office 253 SOR/2014-104 — June 12, 2014 28 SCHEDULE 5 (Subsection 18(1)) ANNEXE 5 (Paragraphe 18(1)) APPLICATION DEMANDE 1. The applicant’s name, complete address, telephone number and, if applicable, email address and facsimile number. 1. Les nom et adresse complète ainsi que le numéro de téléphone et, le cas échéant, le numéro de télécopieur et l’adresse électronique du demandeur. 2. If the applicant is represented by a member of the bar of a province, the representative’s name, firm, complete address, tele- phone number and, if applicable, email address and facsimile num- ber. 2. Si le demandeur est représenté par un membre du barreau d’une province, les noms du représentant et de son cabinet, ses adresse complète et numéro de téléphone et, le cas échéant, ses numéro de té- lécopieur et adresse électronique. 3. If the applicant is represented by a person that is not a member of the bar of a province, a statement to that effect. 3. Si le représentant n’est membre du barreau d’aucune province, la mention de ce fait. 4. The respondent’s name and, if known, their complete address, telephone number and, if applicable, email address and facsimile number. 4. Le nom du défendeur et, s’il sont connus, ses adresse complète et numéro de téléphone et, le cas échéant, ses numéro de télécopieur et adresse électronique. 5. The details of the application that include (a) any legislative provisions that the applicant relies on; (b) a clear statement of the issues; (c) a full description of the facts; (d) the relief claimed; and (e) the arguments in support of the application. 5. Les détails concernant la demande, notamment : a) les dispositions législatives sur lesquelles la demande est fon- dée; b) un énoncé clair des questions en litige; c) une description complète des faits; d) les réparations demandées; e) les arguments à l’appui de la demande. 6. A list of any documents submitted in support of the application and a copy of each of those documents. 6. La liste de tous les documents à l’appui de la demande et une copie de chacun de ceux-ci. 254 DORS/2014-104 — 12 juin 2014 29 SCHEDULE 6 (Section 19) ANNEXE 6 (Article 19) ANSWER TO APPLICATION RÉPONSE À UNE DEMANDE 1. The applicant’s name, the respondent’s name and the file num- ber assigned by the Agency. 1. Les noms du demandeur et du défendeur ainsi que le numéro de dossier attribué par l’Office. 2. The respondent’s name, complete address, telephone number and, if applicable, email address and facsimile number. 2. Le nom du défendeur, ses adresse complète et numéro de télé- phone et, le cas échéant, ses numéro de télécopieur et adresse électro- nique. 3. If the respondent is represented by a member of the bar of a province, the representative’s name, firm, complete address, tele- phone number and, if applicable, email address and facsimile num- ber. 3. Si le défendeur est représenté par un membre du barreau d’une province, les noms du représentant et de son cabinet, ses adresse complète et numéro de téléphone et, le cas échéant, ses numéro de té- lécopieur et adresse électronique. 4. If the respondent is represented by a person that is not a mem- ber of the bar of a province, a statement to that effect. 4. Si le représentant n’est membre du barreau d’aucune province, la mention de ce fait. 5. The details of the answer that include (a) a statement that sets out the elements that the respondent agrees with or disagrees with in the application; (b) a full description of the facts; and (c) the arguments in support of the answer. 5. Les détails concernant la réponse, notamment : a) les points de la demande sur lesquels le défendeur est d’accord ou en désaccord; b) une description complète des faits; c) les arguments à l’appui de la réponse. 6. A list of any documents submitted in support of the answer and a copy of each of those documents. 6. La liste de tous les documents à l’appui de sa réponse et une co- pie de chacun de ceux-ci. 7. The name of each party to which a copy of the answer is being sent and the complete address, the email address or the facsimile number to which it is being sent. 7. Le nom de chaque partie à qui une copie de la réponse est en- voyée ainsi que l’adresse complète, l’adresse électronique ou le nu- méro de télécopieur auquel la copie est envoyée. 255 Current to May 27, 2014 Last amended on June 13, 2013 À jour au 27 mai 2014 Dernière modification le 13 juin 2013 Published by the Minister of Justice at the following address: http://laws-lois.justice.gc.ca Publié par le ministre de la Justice à l’adresse suivante : http://lois-laws.justice.gc.ca CANADA CONSOLIDATION Canadian Transportation Agency General Rules CODIFICATION Règles générales de l’Office des transports du Canada SOR/2005-35 DORS/2005-35 256 SOR/2005-35 — May 27, 2014 12 able information that the party considers would be of assistance to the party who di- rected the questions. renseignement disponible qui, à son avis, serait utile à la partie qui lui a adressé les questions. Request for Agency order (3) If a party who directed questions is not satisfied that the response is complete or adequate, the party may request the Agency to order that the questions be an- swered in full, and the Agency may order that the questions be answered in full or in part, or not at all. (3) La partie insatisfaite des réponses à ses questions peut demander à l'Office d'ordonner qu'il y soit répondu de manière complète et satisfaisante et l'Office peut or- donner qu'il soit répondu aux questions en tout ou en partie ou qu'il n'y soit pas répon- du du tout. Arrêté de l'Office sur demande FORMULATION OF ISSUES FORMULATION DES QUESTIONS Reasons for formulation of issues 21. The Agency may formulate the is- sues to be considered in any proceeding or direct the parties to propose the issues for its consideration if (a) the documents filed do not suffi- ciently raise or disclose the issues; (b) the formulation would assist the Agency in the conduct of the proceed- ing; or (c) the formulation would assist the par- ties to participate more effectively in the proceeding. 21. L'Office peut formuler les questions qu'il examinera au cours d'une instance ou ordonner aux parties de lui en proposer pour examen, si, selon le cas : a) les documents déposés n'établissent pas assez clairement les questions en li- tige; b) une telle démarche l'aiderait à mener l'instance; c) une telle démarche contribuerait à la participation plus efficace des parties à l'instance. Raisons de la formulation des questions DETERMINATION OF ISSUES RÈGLEMENT DES QUESTIONS Determination prior to continuing a proceeding 22. (1) If the Agency determines that an issue should be decided before continu- ing a proceeding, or if a party requests it, the Agency may direct that the issue be de- cided in any manner that it considers ap- propriate. 22. (1) Si l'Office l'estime nécessaire ou si une partie lui en fait la demande, il peut ordonner qu'une question soit tranchée avant de poursuivre l'instance, de la ma- nière qu'il juge indiquée. Décision avant de poursuivre l'instance Postponement of proceeding (2) The Agency may, pending its deci- sion on the issue, postpone the whole or any part of the proceeding. (2) L'Office peut, en attente de sa déci- sion sur la question, suspendre tout ou par- tie de l'instance. Suspension de l'instance CONFIDENTIALITY CONFIDENTIALITÉ Claim for confidentiality 23. (1) The Agency shall place on its public record any document filed with it in respect of any proceeding unless the person 23. (1) L'Office verse dans ses archives publiques les documents concernant une instance qui sont déposés auprès de lui, à Demande de traitement confidentiel 257 DORS/2005-35 — 27 mai 2014 13 filing the document makes a claim for its confidentiality in accordance with this sec- tion. moins que la personne qui les dépose ne présente une demande de traitement confi- dentiel conformément au présent article. Prohibition (2) No person shall refuse to file a doc- ument on the basis of a claim for confiden- tiality alone. (2) Nul ne peut refuser de déposer un document en se fondant uniquement sur le fait qu'une demande de traitement confi- dentiel a été présentée à son égard. Interdiction Form of claim (3) A claim for confidentiality in re- spect of a document shall be made in ac- cordance with subsections (4) to (9). (3) La demande de traitement confiden- tiel à l'égard d'un document doit être faite conformément aux paragraphes (4) à (9). Forme de la demande What to file (4) A person making a claim for confi- dentiality shall file (a) one version of the document from which the confidential information has been deleted, whether or not an objec- tion has been made under paragraph (5) (b); and (b) one version of the document that contains the confidential information marked “contains confidential informa- tion” on the top of each page and that identifies the portions that have been deleted from the version of the docu- ment referred to in paragraph (a). (4) Quiconque présente une demande de traitement confidentiel doit déposer : a) une version des documents desquels les renseignements confidentiels ont été retirés, qu'une opposition ait été présen- tée ou non aux termes de l'alinéa (5)b); b) une version des documents qui porte la mention « contient des renseigne- ments confidentiels » au haut de chaque page et qui indique les passages qui ont été retirés de la version visée à l'alinéa a). Documents à déposer Content of claim (5) A person making a claim for confi- dentiality shall indicate (a) the reasons for the claim, including, if any specific direct harm is asserted, the nature and extent of the harm that would likely result to the person making the claim for confidentiality if the docu- ment were disclosed; and (b) whether the person objects to having a version of the document from which the confidential information has been re- moved placed on the public record and, if so, shall state the reasons for object- ing. (5) La personne qui demande le traite- ment confidentiel doit indiquer : a) les raisons de sa demande et, le cas échéant, la nature et l'ampleur du préju- dice direct que lui causerait vraisembla- blement la divulgation du document; b) les raisons qu'elle a, le cas échéant, de s'opposer à ce que soit versée dans les archives publiques la version des docu- ments desquels les renseignements confidentiels ont été retirés. Contenu de la demande 258 SOR/2005-35 — May 27, 2014 14 Claim on public record (6) A claim for confidentiality shall be placed on the public record and a copy shall be provided, on request, to any per- son. (6) La demande de traitement confiden- tiel est versée dans les archives publiques, et une copie en est remise à toute personne qui en fait la demande. Demande versée dans les archives publiques Request for disclosure and filing (7) A person contesting a claim for con- fidentiality shall file with the Agency (a) a request for the disclosure of the document, setting out the relevance of the document, the public interest in its disclosure and any other reason in sup- port of the request; and (b) any material that may be useful in explaining or supporting those reasons. (7) Quiconque conteste la demande de traitement confidentiel d'un document dé- pose auprès de l'Office : a) une demande de divulgation du docu- ment exposant sa pertinence au regard de l'instance, l'intérêt du public dans sa divulgation ainsi que tout autre motif à l'appui de la demande; b) tout document de nature à éclairer ou à renforcer ces motifs. Demande de divulgation et dépôt Service of request for disclosure (8) A person contesting a claim for con- fidentiality shall serve a copy of the re- quest for disclosure on the person making the claim. (8) Quiconque conteste la demande de traitement confidentiel signifie une copie de la demande de divulgation à la personne qui a demandé le traitement confidentiel. Signification de la demande de divulgation Reply to request for disclosure (9) The person making a claim for con- fidentiality may, within five days after be- ing served with a request for disclosure, file a reply with the Agency and serve a copy of the reply on the person who made the request for disclosure. (9) Quiconque a demandé le traitement confidentiel dépose une réplique dans les cinq jours suivant la date de la signification de la demande de divulgation et en signifie une copie à la personne qui a demandé la divulgation. Réplique DISPOSITION OF CLAIM FOR CONFIDENTIALITY DÉCISION SUR LA DEMANDE DE TRAITEMENT CONFIDENTIEL Agency's powers 24. (1) The Agency may dispose of a claim for confidentiality on the basis of (a) documents filed with the Agency or oral evidence heard by it; (b) documents or evidence obtained at a conference if the matter has been re- ferred to a conference under section 35; or (c) documents or evidence obtained through depositions taken before a mem- ber or officer of the Agency or any other person appointed by the Agency. 24. (1) L'Office peut trancher la de- mande de traitement confidentiel sur la foi : a) des documents déposés auprès de lui ou des témoignages qu'il a entendus; b) des documents ou des éléments de preuve obtenus lors de la conférence, si la question a été soumise à une confé- rence en vertu de l'article 35; c) des documents ou des éléments de preuve tirés des dépositions recueillies par un membre ou un agent de l'Office Pouvoirs de l'Office 259 DORS/2005-35 — 27 mai 2014 15 ou toute autre personne nommée à cette fin par l'Office. Placing of document on public record (2) The Agency shall place a document in respect of which a claim for confiden- tiality has been made on the public record if the document is relevant to the proceed- ing and no specific direct harm would like- ly result from its disclosure or any demon- strated specific direct harm is not sufficient to outweigh the public interest in having it disclosed. (2) L'Office verse dans ses archives pu- bliques le document faisant l'objet d'une demande de traitement confidentiel s'il es- time que le document est pertinent au re- gard de l'instance et que sa divulgation ne causerait vraisemblablement pas de préju- dice direct, ou que l'intérêt du public à le divulguer l'emporte sur le préjudice direct qui pourrait en résulter. Versement du document dans les archives publiques Order for Withdrawal (3) If the Agency determines that a doc- ument in respect of which a claim for con- fidentiality has been made is not relevant to a proceeding, the Agency may order that the document be withdrawn. (3) Si l'Office conclut que le document faisant l'objet de la demande de traitement confidentiel n'est pas pertinent au regard de l'instance, il peut ordonner que le docu- ment soit retiré. Arrêté de retrait Document confidential and relevant (4) If the Agency determines that a doc- ument in respect of which a claim for con- fidentiality has been made is relevant to a proceeding and the specific direct harm likely to result from its disclosure justifies a claim for confidentiality, the Agency may (a) order that the document not be placed on the public record but that it be maintained in confidence; (b) order that a version or a part of the document from which the confidential information has been removed be placed on the public record; (c) order that the document be disclosed at a hearing to be conducted in private; (d) order that the document or any part of it be provided to the parties to the proceeding, or only to their solicitors, and that the document not be placed on the public record; or (e) make any other order that it consid- ers appropriate. (4) Si l'Office juge que le document fai- sant l'objet de la demande de traitement confidentiel est pertinent au regard de l'ins- tance et qu'une telle demande est justifiée en raison du préjudice direct que pourrait causer sa divulgation, il peut, selon le cas : a) ordonner que le document ne soit pas versé dans ses archives publiques mais qu'il soit conservé de façon à en préser- ver la confidentialité; b) ordonner qu'une version ou une par- tie du document ne contenant pas de ren- seignements confidentiels soit versée dans les archives publiques; c) ordonner que le document soit divul- gué au cours d'une audience à huis clos; d) ordonner que tout ou partie du docu- ment soit fourni aux parties ou à leurs avocats seulement, et que le document ne soit pas versé dans les archives pu- bliques; e) prendre tout autre arrêté qu'il juge in- diqué. Document confidentiel et pertinent 260 SOR/2005-35 — May 27, 2014 16 AGENCY DETERMINATION OF CONFIDENTIALITY DÉCISION DE L'OFFICE SUR LE CARACTÈRE CONFIDENTIEL Procedure 25. The Agency may make a determina- tion of confidentiality on its own initiative after giving the other parties to the pro- ceeding an opportunity to comment on the issue of confidentiality, in accordance with the procedure set out in section 23, with such modifications as the circumstances or the Agency requires. 25. L'Office peut, de sa propre initia- tive, se prononcer sur le caractère confi- dentiel d'un document en donnant aux autres parties la possibilité de formuler des commentaires sur la question conformé- ment à la procédure prévue à l'article 23, avec les adaptations dictées par les circons- tances ou par l'Office. Procédure DOCUMENTS CONTAINING FINANCIAL OR CORPORATE INFORMATION DOCUMENTS CONTENANT DES RENSEIGNEMENTS FINANCIERS OU D'ENTREPRISE Confidential Documents 26. If financial or corporate information is filed with the Agency, the Agency shall treat the information as confidential unless the person who provides it agrees in writ- ing that the Agency need not treat it as confidential. 26. Si des renseignements financiers ou d'entreprise sont déposés auprès de l'Of- fice, il les traite de manière confidentielle à moins que la personne qui les a fournis re- nonce par écrit à leur caractère confiden- tiel. Documents réputés confidentiels POSTPONEMENTS AND ADJOURNMENTS AJOURNEMENT ET SUSPENSION Request 27. Subject to section 66, a party may request in writing a postponement or an ad- journment of a proceeding. 27. Sous réserve de l'article 66, une par- tie peut demander par écrit l'ajournement ou la suspension de l'instance. Demande Agency's powers 28. (1) The Agency may allow a post- ponement or an adjournment (a) if a delay of the proceedings would be appropriate until a decision is ren- dered in another proceeding before the Agency or before any court in Canada in which the issue is the same or substan- tially the same as the issue to be raised in the proceeding; (b) if a party to a proceeding has not complied with any requirement of these Rules, or with any direction on proce- dure issued by the Agency, which post- ponement or adjournment shall continue until the Agency is satisfied that the re- quirement or direction has been com- plied with; or 28. (1) L'Office peut autoriser l'ajour- nement ou la suspension de l'instance dans l'un ou l'autre des cas suivants : a) il juge qu'il serait indiqué de retarder l'instance jusqu'à ce que lui-même ou un autre tribunal canadien ait rendu la déci- sion sur une question identique ou simi- laire à celle qui est soulevée dans l'ins- tance; b) une partie à l'instance ne s'est pas conformée à une exigence des présentes règles ou à une directive sur la procé- dure qu'il lui a donnée, auquel cas il maintient l'ajournement ou la suspension jusqu'à ce qu'il soit convaincu que l'exi- gence ou la directive a été respectée; Pouvoirs de l'Office 261 SOR/2005-35 — May 27, 2014 22 APPLICATION DEMANDE Form and content 40. (1) Every application shall be in writing and shall be commenced by filing with the Agency (a) the full name, address, telephone number and any other telecommunica- tions numbers of the applicant or the ap- plicant's representative; (b) a clear and concise statement of the relevant facts, the grounds for the appli- cation, the provisions of the Act or any regulations made under the Act under which the application is made, the nature of, and the justification for, the relief sought in the application and any request for costs; and (c) any other information or documenta- tion that is relevant in explaining or sup- porting the application or that may be re- quired by the Agency or under the Act. 40. (1) Toute demande se fait par écrit et est introduite par le dépôt auprès de l'Of- fice des renseignements suivants : a) le nom complet, l'adresse, le numéro de téléphone et autre numéro de télé- communication du demandeur ou de son représentant; b) un exposé clair et concis des faits pertinents, les dispositions de la Loi ou de ses règlements d'application aux termes desquelles la demande est pré- sentée, la nature et les motifs du redres- sement recherché et toute demande de frais liée à la demande; c) tout autre renseignement ou docu- ment utile à l'appui de la demande ou re- quis par l'Office ou sous le régime de la Loi. Forme et contenu Incomplete application (2) If any of the information referred to in subsection (1) is not filed or is deficient in any way, the Agency may advise the ap- plicant that the application is not complete and cannot be processed until the necessary information is filed. (2) Si l'un ou l'autre des renseignements visés au paragraphe (1) n'est pas déposé ou est incomplet de quelque façon que ce soit, l'Office peut aviser le demandeur que la demande est incomplète et qu'elle ne pour- ra être examinée tant que tous les rensei- gnements nécessaires n'auront pas été dé- posés. Demande incomplète Service 41. An applicant shall serve a copy of the application on each respondent and on any other person that the Agency directs. 41. Le demandeur signifie une copie de la demande à chaque intimé et à toute autre personne désignée par l'Office. Signification ANSWER RÉPONSE Form and content 42. (1) A respondent may oppose an application within 30 days after receiving it, by filing with the Agency a clear and concise written answer that includes an ad- mission or denial of any facts alleged in the application and any documents that are rel- 42. (1) L'intimé peut s'opposer à la de- mande en déposant auprès de l'Office, dans les trente jours suivant la réception de la demande, une réponse écrite claire et concise qui comporte la reconnaissance ou la dénégation de tout ou partie des faits al- légués dans la demande et des documents Forme et contenu 262 Current to J une 23, 2014 Last amended on May 1, 2014 À jour au 23 juin 2014 Dernière modification le 1 mai 2014 Published by the Minister of J ustice at the following address: http://laws-lois.justice.gc.ca Publié par le ministre de la J ustice à l’adresse suivante : http://lois-laws.justice.gc.ca CANADA CONSOLIDATION Federal Courts Act CODIFICATION Loi sur les Cours fédérales R.S.C., 1985, c. F-7 L.R.C. (1985), ch. F-7 263 Federal Courts — June 23, 2014 12 eral Court — Trial Division or the Exche- quer Court of Canada; and (b) any question of law, fact or mixed law and fact that the Crown and any person have agreed in writing shall be determined by the Federal Court, the Federal Court — Trial Di- vision or the Exchequer Court of Canada. tion de première instance de la Cour fédé- rale; b) toute question de droit, de fait ou mixte à trancher, aux termes d’une convention écrite à laquelle la Couronne est partie, par la Cour fédérale — ou l’ancienne Cour de l’Échi- quier du Canada — ou par la Section de pre- mière instance de la Cour fédérale. Conflicting claims against Crown (4) The Federal Court has concurrent origi- nal jurisdiction to hear and determine proceed- ings to determine disputes in which the Crown is or may be under an obligation and in respect of which there are or may be conflicting claims. (4) Elle a compétence concurrente, en pre- mière instance, dans les procédures visant à ré- gler les différends mettant en cause la Cou- ronne à propos d’une obligation réelle ou éventuelle pouvant faire l’objet de demandes contradictoires. Demandes contradictoires contre la Couronne Relief in favour of Crown or against officer (5) The Federal Court has concurrent origi- nal jurisdiction (a) in proceedings of a civil nature in which the Crown or the Attorney General of Canada claims relief; and (b) in proceedings in which relief is sought against any person for anything done or omitted to be done in the performance of the duties of that person as an officer, servant or agent of the Crown. (5) Elle a compétence concurrente, en pre- mière instance, dans les actions en réparation intentées : a) au civil par la Couronne ou le procureur général du Canada; b) contre un fonctionnaire, préposé ou man- dataire de la Couronne pour des faits — actes ou omissions — survenus dans le cadre de ses fonctions. Actions en réparation Federal Court has no jurisdiction (6) If an Act of Parliament confers jurisdic- tion in respect of a matter on a court constituted or established by or under a law of a province, the Federal Court has no jurisdiction to enter- tain any proceeding in respect of the same mat- ter unless the Act expressly confers that juris- diction on that court. R.S., 1985, c. F-7, s. 17; 1990, c. 8, s. 3; 2002, c. 8, s. 25. (6) Elle n’a pas compétence dans les cas où une loi fédérale donne compétence à un tribu- nal constitué ou maintenu sous le régime d’une loi provinciale sans prévoir expressément la compétence de la Cour fédérale. L.R. (1985), ch. F-7, art. 17; 1990, ch. 8, art. 3; 2002, ch. 8, art. 25. Incompétence de la Cour fédérale Extraordinary remedies, federal tribunals 18. (1) Subject to section 28, the Federal Court has exclusive original jurisdiction (a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and (b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), includ- ing any proceeding brought against the At- torney General of Canada, to obtain relief against a federal board, commission or other tribunal. 18. (1) Sous réserve de l’article 28, la Cour fédérale a compétence exclusive, en première instance, pour : a) décerner une injonction, un bref de certiorari, de mandamus, de prohibition ou de quo warranto, ou pour rendre un juge- ment déclaratoire contre tout office fédéral; b) connaître de toute demande de réparation de la nature visée par l’alinéa a), et notam- ment de toute procédure engagée contre le procureur général du Canada afin d’obtenir réparation de la part d’un office fédéral. Recours extraordinaires : offices fédéraux 264 Cours fédérales — 23 juin 2014 13 Extraordinary remedies, members of Canadian Forces (2) The Federal Court has exclusive original jurisdiction to hear and determine every appli- cation for a writ of habeas corpus ad subjiciendum, writ of certiorari, writ of prohi- bition or writ of mandamus in relation to any member of the Canadian Forces serving outside Canada. (2) Elle a compétence exclusive, en pre- mière instance, dans le cas des demandes sui- vantes visant un membre des Forces cana- diennes en poste à l’étranger : bref d’habeas corpus ad subjiciendum, de certiorari, de pro- hibition ou de mandamus. Recours extraordinaires : Forces canadiennes Remedies to be obtained on application (3) The remedies provided for in subsections (1) and (2) may be obtained only on an applica- tion for judicial review made under section 18.1. R.S., 1985, c. F-7, s. 18; 1990, c. 8, s. 4; 2002, c. 8, s. 26. (3) Les recours prévus aux paragraphes (1) ou (2) sont exercés par présentation d’une de- mande de contrôle judiciaire. L.R. (1985), ch. F-7, art. 18; 1990, ch. 8, art. 4; 2002, ch. 8, art. 26. Exercice des recours Application for judicial review 18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. 18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement tou- ché par l’objet de la demande. Demande de contrôle judiciaire Time limitation (2) An application for judicial review in re- spect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the of- fice of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days. (2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l’office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémen- taire qu’un juge de la Cour fédérale peut, avant ou après l’expiration de ces trente jours, fixer ou accorder. Délai de présentation Powers of Federal Court (3) On an application for judicial review, the Federal Court may (a) order a federal board, commission or other tribunal to do any act or thing it has un- lawfully failed or refused to do or has unrea- sonably delayed in doing; or (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determi- nation in accordance with such directions as it considers to be appropriate, prohibit or re- strain, a decision, order, act or proceeding of a federal board, commission or other tri- bunal. (3) Sur présentation d’une demande de contrôle judiciaire, la Cour fédérale peut : a) ordonner à l’office fédéral en cause d’ac- complir tout acte qu’il a illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable; b) déclarer nul ou illégal, ou annuler, ou in- firmer et renvoyer pour jugement conformé- ment aux instructions qu’elle estime appro- priées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l’office fédéral. Pouvoirs de la Cour fédérale Grounds of review (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its juris- diction; (b) failed to observe a principle of natural justice, procedural fairness or other proce- dure that it was required by law to observe; (4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le cas : a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer; b) n’a pas observé un principe de justice na- turelle ou d’équité procédurale ou toute autre procédure qu’il était légalement tenu de res- pecter; Motifs 265 Federal Courts — June 23, 2014 14 (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (d) based its decision or order on an erro- neous finding of fact that it made in a per- verse or capricious manner or without regard for the material before it; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. c) a rendu une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, ti- rée de façon abusive ou arbitraire ou sans te- nir compte des éléments dont il dispose; e) a agi ou omis d’agir en raison d’une fraude ou de faux témoignages; f) a agi de toute autre façon contraire à la loi. Defect in form or technical irregularity (5) If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Federal Court may (a) refuse the relief if it finds that no sub- stantial wrong or miscarriage of justice has occurred; and (b) in the case of a defect in form or a tech- nical irregularity in a decision or an order, make an order validating the decision or or- der, to have effect from any time and on any terms that it considers appropriate. 1990, c. 8, s. 5; 2002, c. 8, s. 27. (5) La Cour fédérale peut rejeter toute de- mande de contrôle judiciaire fondée unique- ment sur un vice de forme si elle estime qu’en l’occurrence le vice n’entraîne aucun dommage important ni déni de justice et, le cas échéant, valider la décision ou l’ordonnance entachée du vice et donner effet à celle-ci selon les modali- tés de temps et autres qu’elle estime indiquées. 1990, ch. 8, art. 5; 2002, ch. 8, art. 27. Vice de forme Interimorders 18.2 On an application for judicial review, the Federal Court may make any interim orders that it considers appropriate pending the final disposition of the application. 1990, c. 8, s. 5; 2002, c. 8, s. 28. 18.2 La Cour fédérale peut, lorsqu’elle est saisie d’une demande de contrôle judiciaire, prendre les mesures provisoires qu’elle estime indiquées avant de rendre sa décision défini- tive. 1990, ch. 8, art. 5; 2002, ch. 8, art. 28. Mesures provisoires Reference by federal tribunal 18.3 (1) A federal board, commission or other tribunal may at any stage of its proceed- ings refer any question or issue of law, of juris- diction or of practice and procedure to the Fed- eral Court for hearing and determination. 18.3 (1) Les offices fédéraux peuvent, à tout stade de leurs procédures, renvoyer devant la Cour fédérale pour audition et jugement toute question de droit, de compétence ou de pratique et procédure. Renvoi d’un office fédéral Reference by Attorney General of Canada (2) The Attorney General of Canada may, at any stage of the proceedings of a federal board, commission or other tribunal, other than a ser- vice tribunal within the meaning of the Nation- al Defence Act, refer any question or issue of the constitutional validity, applicability or oper- ability of an Act of Parliament or of regulations made under an Act of Parliament to the Federal Court for hearing and determination. 1990, c. 8, s. 5; 2002, c. 8, s. 28. (2) Le procureur général du Canada peut, à tout stade des procédures d’un office fédéral, sauf s’il s’agit d’un tribunal militaire au sens de la Loi sur la défense nationale, renvoyer devant la Cour fédérale pour audition et jugement toute question portant sur la validité, l’applica- bilité ou l’effet, sur le plan constitutionnel, d’une loi fédérale ou de ses textes d’applica- tion. 1990, ch. 8, art. 5; 2002, ch. 8, art. 28. Renvoi du procureur général Hearings in summary way 18.4 (1) Subject to subsection (2), an appli- cation or reference to the Federal Court under any of sections 18.1 to 18.3 shall be heard and 18.4 (1) Sous réserve du paragraphe (2), la Cour fédérale statue à bref délai et selon une procédure sommaire sur les demandes et les Procédure sommaire d’audition 266 Cours fédérales — 23 juin 2014 21 (f) acted in any other way that was contrary to law. e) elle a agi ou omis d’agir en raison d’une fraude ou de faux témoignages; f) elle a agi de toute autre façon contraire à la loi. Hearing in summary way (1.4) An appeal under subsection (1.2) shall be heard and determined without delay and in a summary way. (1.4) L’appel interjeté en vertu du para- graphe (1.2) est entendu et tranché immédiate- ment et selon une procédure sommaire. Procédure sommaire Notice of appeal (2) An appeal under this section shall be brought by filing a notice of appeal in the Reg- istry of the Federal Court of Appeal (a) in the case of an interlocutory judgment, within 10 days after the pronouncement of the judgment or within any further time that a judge of the Federal Court of Appeal may fix or allow before or after the end of those 10 days; and (b) in any other case, within 30 days, not in- cluding any days in J uly and August, after the pronouncement of the judgment or deter- mination appealed from or within any further time that a judge of the Federal Court of Ap- peal may fix or allow before or after the end of those 30 days. (2) L’appel interjeté dans le cadre du présent article est formé par le dépôt d’un avis au greffe de la Cour d’appel fédérale, dans le délai imparti à compter du prononcé du jugement en cause ou dans le délai supplémentaire qu’un juge de la Cour d’appel fédérale peut, soit avant soit après l’expiration de celui-ci, accorder. Le délai imparti est de : a) dix jours, dans le cas d’un jugement inter- locutoire; b) trente jours, compte non tenu de juillet et août, dans le cas des autres jugements. Avis d’appel Service (3) All parties directly affected by an appeal under this section shall be served without delay with a true copy of the notice of appeal, and ev- idence of the service shall be filed in the Reg- istry of the Federal Court of Appeal. (3) L’appel est signifié sans délai à toutes les parties directement concernées par une co- pie certifiée conforme de l’avis. La preuve de la signification doit être déposée au greffe de la Cour d’appel fédérale. Signification Final judgment (4) For the purposes of this section, a final judgment includes a judgment that determines a substantive right except as to any question to be determined by a referee pursuant to the judg- ment. R.S., 1985, c. F-7, s. 27; R.S., 1985, c. 51 (4th Supp.), s. 11; 1990, c. 8, ss. 7, 78(E); 1993, c. 27, s. 214; 2002, c. 8, s. 34. (4) Pour l’application du présent article, est assimilé au jugement définitif le jugement qui statue au fond sur un droit, à l’exception des questions renvoyées à l’arbitrage par le juge- ment. L.R. (1985), ch. F-7, art. 27; L.R. (1985), ch. 51 (4 e suppl.), art. 11; 1990, ch. 8, art. 7 et 78(A); 1993, ch. 27, art. 214; 2002, ch. 8, art. 34. J ugement définitif J udicial review 28. (1) The Federal Court of Appeal has ju- risdiction to hear and determine applications for judicial review made in respect of any of the following federal boards, commissions or other tribunals: (a) the Board of Arbitration established by the Canada Agricultural Products Act; (b) the Review Tribunal established by the Canada Agricultural Products Act; (b.1) the Conflict of Interest and Ethics Commissioner appointed under section 81 of the Parliament of Canada Act; 28. (1) La Cour d’appel fédérale a compé- tence pour connaître des demandes de contrôle judiciaire visant les offices fédéraux suivants : a) le conseil d’arbitrage constitué par la Loi sur les produits agricoles au Canada; b) la commission de révision constituée par cette loi; b.1) le commissaire aux conflits d’intérêts et à l’éthique nommé en vertu de l’article 81 de la Loi sur le Parlement du Canada; c) le Conseil de la radiodiffusion et des télé- communications canadiennes constitué par la Contrôle judiciaire 267 Federal Courts — June 23, 2014 22 (c) the Canadian Radio-television and Telecommunications Commission estab- lished by the Canadian Radio-television and Telecommunications Commission Act; (d) [Repealed, 2012, c. 19, s. 272] (e) the Canadian International Trade Tri- bunal established by the Canadian Interna- tional Trade Tribunal Act; (f) the National Energy Board established by the National Energy Board Act; (g) the Governor in Council, when the Gov- ernor in Council makes an order under sub- section 54(1) of the National Energy Board Act; (g) the Appeal Division of the Social Securi- ty Tribunal established under section 44 of the Department of Employment and Social Development Act, unless the decision is made under subsection 57(2) or section 58 of that Act or relates to an appeal brought under subsection 53(3) of that Act or an appeal re- specting a decision relating to further time to make a request under subsection 52(2) of that Act, section 81 of the Canada Pension Plan, section 27.1 of the Old Age Security Act or section 112 of the Employment Insur- ance Act; (h) the Canada Industrial Relations Board established by the Canada Labour Code; (i) the Public Service Labour Relations Board established by the Public Service Labour Relations Act; (j) the Copyright Board established by the Copyright Act; (k) the Canadian Transportation Agency es- tablished by the Canada Transportation Act; (l) [Repealed, 2002, c. 8, s. 35] (m) [Repealed, 2012, c. 19, s. 272] (n) the Competition Tribunal established by the Competition Tribunal Act; (o) assessors appointed under the Canada Deposit Insurance Corporation Act; (p) [Repealed, 2012, c. 19, s. 572] (q) the Public Servants Disclosure Protec- tion Tribunal established by the Public Ser- vants Disclosure Protection Act; and Loi sur le Conseil de la radiodiffusion et des télécommunications canadiennes; d) [Abrogé, 2012, ch. 19, art. 272] e) le Tribunal canadien du commerce exté- rieur constitué par la Loi sur le Tribunal ca- nadien du commerce extérieur; f) l’Office national de l’énergie constitué par la Loi sur l’Office national de l’énergie; g) le gouverneur en conseil, quand il prend un décret en vertu du paragraphe 54(1) de la Loi sur l’Office national de l’énergie; g) la division d’appel du Tribunal de la sé- curité sociale, constitué par l’article 44 de la Loi sur le ministère de l’Emploi et du Déve- loppement social, sauf dans le cas d’une dé- cision qui est rendue au titre du paragraphe 57(2) ou de l’article 58 de cette loi ou qui vise soit un appel interjeté au titre du para- graphe 53(3) de cette loi, soit un appel concernant une décision relative au délai supplémentaire visée au paragraphe 52(2) de cette loi, à l’article 81 du Régime de pensions du Canada, à l’article 27.1 de la Loi sur la sécurité de la vieillesse ou à l’article 112 de la Loi sur l’assurance-emploi; h) le Conseil canadien des relations indus- trielles au sens du Code canadien du travail; i) la Commission des relations de travail dans la fonction publique constituée par la Loi sur les relations de travail dans la fonc- tion publique; j) la Commission du droit d’auteur consti- tuée par la Loi sur le droit d’auteur; k) l’Office des transports du Canada consti- tué par la Loi sur les transports au Canada; l) [Abrogé, 2002, ch. 8, art. 35] m) [Abrogé, 2012, ch. 19, art. 272] n) le Tribunal de la concurrence constitué par la Loi sur le Tribunal de la concurrence; o) les évaluateurs nommés en application de la Loi sur la Société d’assurance-dépôts du Canada; p) [Abrogé, 2012, ch. 19, art. 572] q) le Tribunal de la protection des fonction- naires divulgateurs d’actes répréhensibles constitué par la Loi sur la protection des 268 Cours fédérales — 23 juin 2014 23 (r) the Specific Claims Tribunal established by the Specific Claims Tribunal Act. fonctionnaires divulgateurs d’actes répré- hensibles; r) le Tribunal des revendications particu- lières constitué par la Loi sur le Tribunal des revendications particulières. Sections apply (2) Sections 18 to 18.5, except subsection 18.4(2), apply, with any modifications that the circumstances require, in respect of any matter within the jurisdiction of the Federal Court of Appeal under subsection (1) and, when they ap- ply, a reference to the Federal Court shall be read as a reference to the Federal Court of Ap- peal. (2) Les articles 18 à 18.5 s’appliquent, ex- ception faite du paragraphe 18.4(2) et compte tenu des adaptations de circonstance, à la Cour d’appel fédérale comme si elle y était mention- née lorsqu’elle est saisie en vertu du paragraphe (1) d’une demande de contrôle judiciaire. Dispositions applicables Federal Court deprived of jurisdiction (3) If the Federal Court of Appeal has juris- diction to hear and determine a matter, the Fed- eral Court has no jurisdiction to entertain any proceeding in respect of that matter. R.S., 1985, c. F-7, s. 28; R.S., 1985, c. 30 (2nd Supp.), s. 61; 1990, c. 8, s. 8; 1992, c. 26, s. 17, c. 33, s. 69, c. 49, s. 128; 1993, c. 34, s. 70; 1996, c. 10, s. 229, c. 23, s. 187; 1998, c. 26, s. 73; 1999, c. 31, s. 92(E); 2002, c. 8, s. 35; 2003, c. 22, ss. 167(E), 262; 2005, c. 46, s. 56.1; 2006, c. 9, ss. 6, 222; 2008, c. 22, s. 46; 2012, c. 19, ss. 110, 272, 572; 2013, c. 40, s. 236. (3) La Cour fédérale ne peut être saisie des questions qui relèvent de la Cour d’appel fédé- rale. L.R. (1985), ch. F-7, art. 28; L.R. (1985), ch. 30 (2 e suppl.), art. 61; 1990, ch. 8, art. 8; 1992, ch. 26, art. 17, ch. 33, art. 69, ch. 49, art. 128; 1993, ch. 34, art. 70; 1996, ch. 10, art. 229, ch. 23, art. 187; 1998, ch. 26, art. 73; 1999, ch. 31, art. 92(A); 2002, ch. 8, art. 35; 2003, ch. 22, art. 167(A) et 262; 2005, ch. 46, art. 56.1; 2006, ch. 9, art. 6 et 222; 2008, ch. 22, art. 46; 2012, ch. 19, art. 110, 272 et 572; 2013, ch. 40, art. 236. Incompétence de la Cour fédérale 29. to 35. [Repealed, 1990, c. 8, s. 8] 29. à 35. [Abrogés, 1990, ch. 8, art. 8] SUBSTANTIVE PROVISIONS DISPOSITIONS DE FOND Prejudgment interest — cause of action within province 36. (1) Except as otherwise provided in any other Act of Parliament, and subject to subsec- tion (2), the laws relating to prejudgment inter- est in proceedings between subject and subject that are in force in a province apply to any pro- ceedings in the Federal Court of Appeal or the Federal Court in respect of any cause of action arising in that province. 36. (1) Sauf disposition contraire de toute autre loi fédérale, et sous réserve du paragraphe (2), les règles de droit en matière d’intérêt avant jugement qui, dans une province, ré- gissent les rapports entre particuliers s’ap- pliquent à toute instance devant la Cour d’appel fédérale ou la Cour fédérale et dont le fait géné- rateur est survenu dans cette province. Intérêt avant jugement — Fait survenu dans une province Prejudgment interest — cause of action outside province (2) A person who is entitled to an order for the payment of money in respect of a cause of action arising outside a province or in respect of causes of action arising in more than one province is entitled to claim and have included in the order an award of interest on the payment at any rate that the Federal Court of Appeal or the Federal Court considers reasonable in the circumstances, calculated (a) where the order is made on a liquidated claim, from the date or dates the cause of ac- tion or causes of action arose to the date of the order; or (b) where the order is made on an unliqui- dated claim, from the date the person entitled (2) Dans toute instance devant la Cour d’ap- pel fédérale ou la Cour fédérale et dont le fait générateur n’est pas survenu dans une province ou dont les faits générateurs sont survenus dans plusieurs provinces, les intérêts avant jugement sont calculés au taux que la Cour d’appel fédé- rale ou la Cour fédérale, selon le cas, estime raisonnable dans les circonstances et : a) s’il s’agit d’une créance d’une somme dé- terminée, depuis la ou les dates du ou des faits générateurs jusqu’à la date de l’ordon- nance de paiement; b) si la somme n’est pas déterminée, depuis la date à laquelle le créancier a avisé par écrit le débiteur de sa demande jusqu’à la date de l’ordonnance de paiement. Intérêt avant jugement — Fait non survenu dans une seule province 269 Current to September 15, 2014 Last amended on August 8, 2013 À jour au 15 septembre 2014 Dernière modification le 8 août 2013 Published by the Minister of Justice at the following address: http://laws-lois.justice.gc.ca Publié par le ministre de la Justice à l’adresse suivante : http://lois-laws.justice.gc.ca CANADA CONSOLIDATION Federal Courts Rules CODIFICATION Règles des Cours fédérales SOR/98-106 DORS/98-106 270 DORS/98-106 — 15 septembre 2014 37 Affidavit by deponent who does not understand an official language (2.1) Where an affidavit is written in an official language for a deponent who does not understand that official language, the affidavit shall (a) be translated orally for the deponent in the language of the deponent by a competent and independent interpreter who has taken an oath, in Form 80B, as to the performance of his or her duties; and (b) contain a jurat in Form 80C. (2.1) Lorsqu’un affidavit est rédigé dans une des langues officielles pour un décla- rant qui ne comprend pas cette langue, l’af- fidavit doit : a) être traduit oralement pour le décla- rant dans sa langue par un interprète in- dépendant et compétent qui a prêté le serment, selon la formule 80B, de bien exercer ses fonctions; b) comporter la formule d’assermenta- tion prévue à la formule 80C. Affidavit d’une personne ne comprenant pas une langue officielle Exhibits (3) Where an affidavit refers to an ex- hibit, the exhibit shall be accurately identi- fied by an endorsement on the exhibit or on a certificate attached to it, signed by the person before whom the affidavit is sworn. SOR/2002-417, s. 10. (3) Lorsqu’un affidavit fait mention d’une pièce, la désignation précise de celle-ci est inscrite sur la pièce même ou sur un certificat joint à celle-ci, suivie de la signature de la personne qui reçoit le ser- ment. DORS/2002-417, art. 10. Pièces à l’appui de l’affidavit Content of affidavits 81. (1) Affidavits shall be confined to facts within the deponent’s personal knowledge except on motions, other than motions for summary judgment or summa- ry trial, in which statements as to the depo- nent’s belief, with the grounds for it, may be included. 81. (1) Les affidavits se limitent aux faits dont le déclarant a une connaissance personnelle, sauf s’ils sont présentés à l’ap- pui d’une requête – autre qu’une requête en jugement sommaire ou en procès sommaire – auquel cas ils peuvent contenir des décla- rations fondées sur ce que le déclarant croit être les faits, avec motifs à l’appui. Contenu Affidavits on belief (2) Where an affidavit is made on be- lief, an adverse inference may be drawn from the failure of a party to provide evi- dence of persons having personal knowl- edge of material facts. SOR/2009-331, s. 2. (2) Lorsqu’un affidavit contient des dé- clarations fondées sur ce que croit le décla- rant, le fait de ne pas offrir le témoignage de personnes ayant une connaissance per- sonnelle des faits substantiels peut donner lieu à des conclusions défavorables. DORS/2009-331, art. 2. Poids de l’affidavit Use of solicitor's affidavit 82. Except with leave of the Court, a so- licitor shall not both depose to an affidavit and present argument to the Court based on that affidavit. 82. Sauf avec l’autorisation de la Cour, un avocat ne peut à la fois être l’auteur d’un affidavit et présenter à la Cour des ar- guments fondés sur cet affidavit. Utilisation de l’affidavit d’un avocat Cross- examination on affidavits 83. A party to a motion or application may cross-examine the deponent of an affi- 83. Une partie peut contre-interroger l’auteur d’un affidavit qui a été signifié par Droit au contre- interrogatoire 271 Current to September 15, 2014 Last amended on July 1, 2014 À jour au 15 septembre 2014 Dernière modification le 1 juillet 2014 Published by the Minister of Justice at the following address: http://laws-lois.justice.gc.ca Publié par le ministre de la Justice à l’adresse suivante : http://lois-laws.justice.gc.ca CANADA CONSOLIDATION Privacy Act CODIFICATION Loi sur la protection des renseignements personnels R.S.C., 1985, c. P-21 L.R.C. (1985), ch. P-21 272 Privacy — September 15, 2014 6 (a) for the purpose for which the informa- tion was obtained or compiled by the institu- tion or for a use consistent with that purpose; or (b) for a purpose for which the information may be disclosed to the institution under sub- section 8(2). 1980-81-82-83, c. 111, Sch. II “7”. a) qu’aux fins auxquelles ils ont été re- cueillis ou préparés par l’institution de même que pour les usages qui sont compatibles avec ces fins; b) qu’aux fins auxquelles ils peuvent lui être communiqués en vertu du paragraphe 8(2). 1980-81-82-83, ch. 111, ann. II « 7 ». Disclosure of personal information 8. (1) Personal information under the con- trol of a government institution shall not, with- out the consent of the individual to whom it re- lates, be disclosed by the institution except in accordance with this section. 8. (1) Les renseignements personnels qui relèvent d’une institution fédérale ne peuvent être communiqués, à défaut du consentement de l’individu qu’ils concernent, que conformé- ment au présent article. Communication des renseigne- ments personnels Where personal information may be disclosed (2) Subject to any other Act of Parliament, personal information under the control of a government institution may be disclosed (a) for the purpose for which the informa- tion was obtained or compiled by the institu- tion or for a use consistent with that purpose; (b) for any purpose in accordance with any Act of Parliament or any regulation made thereunder that authorizes its disclosure; (c) for the purpose of complying with a sub- poena or warrant issued or order made by a court, person or body with jurisdiction to compel the production of information or for the purpose of complying with rules of court relating to the production of information; (d) to the Attorney General of Canada for use in legal proceedings involving the Crown in right of Canada or the Government of Canada; (e) to an investigative body specified in the regulations, on the written request of the body, for the purpose of enforcing any law of Canada or a province or carrying out a law- ful investigation, if the request specifies the purpose and describes the information to be disclosed; (f) under an agreement or arrangement be- tween the Government of Canada or an insti- tution thereof and the government of a province, the council of the Westbank First Nation, the council of a participating First Nation — as defined in subsection 2(1) of the First Nations Jurisdiction over Education in British Columbia Act —, the government of a foreign state, an international organiza- tion of states or an international organization (2) Sous réserve d’autres lois fédérales, la communication des renseignements personnels qui relèvent d’une institution fédérale est auto- risée dans les cas suivants : a) communication aux fins auxquelles ils ont été recueillis ou préparés par l’institution ou pour les usages qui sont compatibles avec ces fins; b) communication aux fins qui sont conformes avec les lois fédérales ou ceux de leurs règlements qui autorisent cette commu- nication; c) communication exigée par subpoena, mandat ou ordonnance d’un tribunal, d’une personne ou d’un organisme ayant le pouvoir de contraindre à la production de renseigne- ments ou exigée par des règles de procédure se rapportant à la production de renseigne- ments; d) communication au procureur général du Canada pour usage dans des poursuites judi- ciaires intéressant la Couronne du chef du Canada ou le gouvernement fédéral; e) communication à un organisme d’enquête déterminé par règlement et qui en fait la de- mande par écrit, en vue de faire respecter des lois fédérales ou provinciales ou pour la te- nue d’enquêtes licites, pourvu que la de- mande précise les fins auxquelles les rensei- gnements sont destinés et la nature des renseignements demandés; f) communication aux termes d’accords ou d’ententes conclus d’une part entre le gou- vernement du Canada ou l’un de ses orga- nismes et, d’autre part, le gouvernement d’une province ou d’un État étranger, une or- Cas d’autorisa- tion 273 Protection des renseignements personnels — 15 septembre 2014 7 established by the governments of states, or any institution of any such government or or- ganization, for the purpose of administering or enforcing any law or carrying out a lawful investigation; (g) to a member of Parliament for the pur- pose of assisting the individual to whom the information relates in resolving a problem; (h) to officers or employees of the institu- tion for internal audit purposes, or to the of- fice of the Comptroller General or any other person or body specified in the regulations for audit purposes; (i) to the Library and Archives of Canada for archival purposes; (j) to any person or body for research or sta- tistical purposes if the head of the govern- ment institution (i) is satisfied that the purpose for which the information is disclosed cannot reason- ably be accomplished unless the informa- tion is provided in a form that would iden- tify the individual to whom it relates, and (ii) obtains from the person or body a written undertaking that no subsequent disclosure of the information will be made in a form that could reasonably be expect- ed to identify the individual to whom it re- lates; (k) to any aboriginal government, associa- tion of aboriginal people, Indian band, gov- ernment institution or part thereof, or to any person acting on behalf of such government, association, band, institution or part thereof, for the purpose of researching or validating the claims, disputes or grievances of any of the aboriginal peoples of Canada; (l) to any government institution for the pur- pose of locating an individual in order to col- lect a debt owing to Her Majesty in right of Canada by that individual or make a payment owing to that individual by Her Majesty in right of Canada; and (m) for any purpose where, in the opinion of the head of the institution, (i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure, or ganisation internationale d’États ou de gou- vernements, le conseil de la première nation de Westbank, le conseil de la première na- tion participante — au sens du paragraphe 2(1) de la Loi sur la compétence des pre- mières nations en matière d’éducation en Colombie-Britannique — ou l’un de leurs or- ganismes, en vue de l’application des lois ou pour la tenue d’enquêtes licites; g) communication à un parlementaire fédé- ral en vue d’aider l’individu concerné par les renseignements à résoudre un problème; h) communication pour vérification interne au personnel de l’institution ou pour vérifica- tion comptable au bureau du contrôleur gé- néral ou à toute personne ou tout organisme déterminé par règlement; i) communication à Bibliothèque et Ar- chives du Canada pour dépôt; j) communication à toute personne ou à tout organisme, pour des travaux de recherche ou de statistique, pourvu que soient réalisées les deux conditions suivantes : (i) le responsable de l’institution est convaincu que les fins auxquelles les ren- seignements sont communiqués ne peuvent être normalement atteintes que si les renseignements sont donnés sous une forme qui permette d’identifier l’individu qu’ils concernent, (ii) la personne ou l’organisme s’engagent par écrit auprès du responsable de l’insti- tution à s’abstenir de toute communication ultérieure des renseignements tant que leur forme risque vraisemblablement de per- mettre l’identification de l’individu qu’ils concernent; k) communication à tout gouvernement au- tochtone, association d’autochtones, bande d’Indiens, institution fédérale ou subdivision de celle-ci, ou à leur représentant, en vue de l’établissement des droits des peuples au- tochtones ou du règlement de leurs griefs; l) communication à toute institution fédérale en vue de joindre un débiteur ou un créancier de Sa Majesté du chef du Canada et de re- couvrer ou d’acquitter la créance; 274 Privacy — September 15, 2014 8 (ii) disclosure would clearly benefit the individual to whom the information re- lates. m) communication à toute autre fin dans les cas où, de l’avis du responsable de l’institu- tion : (i) des raisons d’intérêt public justifie- raient nettement une éventuelle violation de la vie privée, (ii) l’individu concerné en tirerait un avantage certain. Personal information disclosed by Library and Archives of Canada (3) Subject to any other Act of Parliament, personal information under the custody or con- trol of the Library and Archives of Canada that has been transferred there by a government in- stitution for historical or archival purposes may be disclosed in accordance with the regulations to any person or body for research or statistical purposes. (3) Sous réserve des autres lois fédérales, les renseignements personnels qui relèvent de Bi- bliothèque et Archives du Canada et qui y ont été versés pour dépôt ou à des fins historiques par une institution fédérale peuvent être com- muniqués conformément aux règlements pour des travaux de recherche ou de statistique. Communication par Bibliothèque et Archives du Canada Copies of requests under paragraph (2)(e) to be retained (4) The head of a government institution shall retain a copy of every request received by the government institution under paragraph (2) (e) for such period of time as may be prescribed by regulation, shall keep a record of any infor- mation disclosed pursuant to the request for such period of time as may be prescribed by regulation and shall, on the request of the Pri- vacy Commissioner, make those copies and records available to the Privacy Commissioner. (4) Le responsable d’une institution fédérale conserve, pendant la période prévue par les rè- glements, une copie des demandes reçues par l’institution en vertu de l’alinéa (2)e) ainsi qu’une mention des renseignements communi- qués et, sur demande, met cette copie et cette mention à la disposition du Commissaire à la protection de la vie privée. Copie des demandes faites en vertu de l’al. (2)e) Notice of disclosure under paragraph (2)(m) (5) The head of a government institution shall notify the Privacy Commissioner in writ- ing of any disclosure of personal information under paragraph (2)(m) prior to the disclosure where reasonably practicable or in any other case forthwith on the disclosure, and the Priva- cy Commissioner may, if the Commissioner deems it appropriate, notify the individual to whom the information relates of the disclosure. (5) Dans le cas prévu à l’alinéa (2)m), le res- ponsable de l’institution fédérale concernée donne un préavis écrit de la communication des renseignements personnels au Commissaire à la protection de la vie privée si les circonstances le justifient; sinon, il en avise par écrit le Com- missaire immédiatement après la communica- tion. La décision de mettre au courant l’indivi- du concerné est laissée à l’appréciation du Commissaire. Avis de communication dans le cas de l’al. (2)m) Definition of “Indian band” (6) In paragraph (2)(k), “Indian band” means (a) a band, as defined in the Indian Act; (b) a band, as defined in the Cree-Naskapi (of Quebec) Act, chapter 18 of the Statutes of Canada, 1984; (c) the Band, as defined in the Sechelt Indi- an Band Self-Government Act, chapter 27 of the Statutes of Canada, 1986; or (d) a first nation named in Schedule II to the Yukon First Nations Self-Government Act. (6) L’expression « bande d’Indiens » à l’ali- néa (2)k) désigne : a) soit une bande au sens de la Loi sur les Indiens; b) soit une bande au sens de la Loi sur les Cris et les Naskapis du Québec, chapitre 18 des Statuts du Canada de 1984; c) soit la bande au sens de la Loi sur l’auto- nomie gouvernementale de la bande indienne sechelte, chapitre 27 des Statuts du Canada de 1986; Définition de « bande d’Indiens » 275 Protection des renseignements personnels — 15 septembre 2014 9 d) la première nation dont le nom figure à l’annexe II de la Loi sur l’autonomie gouver- nementale des premières nations du Yukon. Definition of “aboriginal government” (7) The expression “aboriginal government” in paragraph (2)(k) means (a) Nisga’a Government, as defined in the Nisga’a Final Agreement given effect by the Nisga’a Final Agreement Act; (b) the council of the Westbank First Na- tion; (c) the Tlicho Government, as defined in section 2 of the Tlicho Land Claims and Self- Government Act; (d) the Nunatsiavut Government, as defined in section 2 of the Labrador Inuit Land Claims Agreement Act; (e) the council of a participating First Nation as defined in subsection 2(1) of the First Na- tions Jurisdiction over Education in British Columbia Act; (f) the Tsawwassen Government, as defined in subsection 2(2) of the Tsawwassen First Nation Final Agreement Act; (g) a Maanulth Government, within the meaning of subsection 2(2) of the Maanulth First Nations Final Agreement Act; or (h) Sioux Valley Dakota Oyate Government, within the meaning of subsection 2(2) of the Sioux Valley Dakota Nation Governance Act. (7) L’expression « gouvernement autoch- tone » à l’alinéa (2)k) s’entend : a) du gouvernement nisga’a, au sens de l’Accord définitif nisga’a mis en vigueur par la Loi sur l’Accord définitif nisga’a; b) du conseil de la première nation de West- bank; c) du gouvernement tlicho, au sens de l’ar- ticle 2 de la Loi sur les revendications terri- toriales et l’autonomie gouvernementale du peuple tlicho; d) du gouvernement nunatsiavut, au sens de l’article 2 de la Loi sur l’Accord sur les re- vendications territoriales des Inuit du Labra- dor; e) du conseil de la première nation partici- pante, au sens du paragraphe 2(1) de la Loi sur la compétence des premières nations en matière d’éducation en Colombie-Britan- nique; f) du gouvernement tsawwassen, au sens du paragraphe 2(2) de la Loi sur l’accord défini- tif concernant la Première Nation de Tsaw- wassen; g) de tout gouvernement maanulth, au sens du paragraphe 2(2) de la Loi sur l’accord dé- finitif concernant les premières nations maa- nulthes; h) du gouvernement de l’oyate dakota de Sioux Valley, au sens du paragraphe 2(2) de la Loi sur la gouvernance de la nation dako- ta de Sioux Valley. Définition de « gouvernement autochtone» Definition of “council of the Westbank First Nation” (8) The expression “council of the Westbank First Nation” in paragraphs (2)(f) and (7)(b) means the council, as defined in the Westbank First Nation Self-Government Agreement given effect by the Westbank First Nation Self-Gov- ernment Act. R.S., 1985, c. P-21, s. 8; R.S., 1985, c. 20 (2nd Supp.), s. 13, c. 1 (3rd Supp.), s. 12; 1994, c. 35, s. 39; 2000, c. 7, s. 26; 2004, c. 11, s. 37, c. 17, s. 18; 2005, c. 1, ss. 106, 109, c. 27, ss. 21, 25; 2006, c. 10, s. 33; 2008, c. 32, s. 30; 2009, c. 18, s. 23; 2014, c. 1, s. 19. (8) L’expression « conseil de la première na- tion de Westbank » aux alinéas (2)f) et (7)b) s’entend du conseil au sens de l’Accord d’auto- nomie gouvernementale de la première nation de Westbank mis en vigueur par la Loi sur l’au- tonomie gouvernementale de la première na- tion de Westbank. L.R. (1985), ch. P-21, art. 8; L.R. (1985), ch. 20 (2 e suppl.), art. 13, ch. 1 (3 e suppl.), art. 12; 1994, ch. 35, art. 39; 2000, ch. 7, art. 26; 2004, ch. 11, art. 37, ch. 17, art. 18; 2005, ch. 1, art. 106 et 109, ch. 27, art. 21 et 25; 2006, ch. 10, art. 33; 2008, ch. 32, art. 30; 2009, ch. 18, art. 23; 2014, ch. 1, art. 19. Définition de « conseil de la première nation de Westbank» 276 Protection des renseignements personnels — 15 septembre 2014 39 in good faith in a newspaper or any other pe- riodical publication or in a broadcast is privi- leged. 1980-81-82-83, c. 111, Sch. II “67”. de la vie privée dans le cadre de la présente loi, ainsi que les relations qui en sont faites de bonne foi par la presse écrite ou audio-vi- suelle. 1980-81-82-83, ch. 111, ann. II « 67 ». OFFENCES INFRACTIONS Obstruction 68. (1) No person shall obstruct the Privacy Commissioner or any person acting on behalf or under the direction of the Commissioner in the performance of the Commissioner’s duties and functions under this Act. 68. (1) Il est interdit d’entraver l’action du Commissaire à la protection de la vie privée ou des personnes qui agissent en son nom ou sous son autorité dans l’exercice des pouvoirs et fonctions qui lui sont conférés en vertu de la présente loi. Entrave Offence and punishment (2) Every person who contravenes this sec- tion is guilty of an offence and liable on sum- mary conviction to a fine not exceeding one thousand dollars. 1980-81-82-83, c. 111, Sch. II “68”. (2) Quiconque contrevient au présent article est coupable d’une infraction et passible, sur déclaration de culpabilité par procédure som- maire, d’une amende maximale de mille dol- lars. 1980-81-82-83, ch. 111, ann. II « 68 ». Infraction et peine EXCLUSIONS EXCLUSIONS Act does not apply to certain materials 69. (1) This Act does not apply to (a) library or museum material preserved solely for public reference or exhibition pur- poses; or (b) material placed in the Library and Archives of Canada, the National Gallery of Canada, the Canadian Museum of History, the Canadian Museum of Nature, the Nation- al Museum of Science and Technology, the Canadian Museum for Human Rights or the Canadian Museum of Immigration at Pier 21 by or on behalf of persons or organizations other than government institutions. 69. (1) La présente loi ne s’applique pas aux documents suivants : a) les documents de bibliothèque ou de mu- sée conservés uniquement à des fins de réfé- rence ou d’exposition pour le public; b) les documents déposés à Bibliothèque et Archives du Canada, au Musée des beaux- arts du Canada, au Musée canadien de l’his- toire, au Musée canadien de la nature, au Musée national des sciences et de la techno- logie, au Musée canadien des droits de la personne ou au Musée canadien de l’immi- gration du Quai 21 par des personnes ou or- ganisations extérieures aux institutions fédé- rales ou pour ces personnes ou organisations. Non-application de la loi Sections 7 and 8 do not apply to certain information (2) Sections 7 and 8 do not apply to personal information that is publicly available. R.S., 1985, c. P-21, s. 69; R.S., 1985, c. 1 (3rd Supp.), s. 12; 1990, c. 3, s. 32; 1992, c. 1, s. 143(E); 2004, c. 11, s. 39; 2008, c. 9, s. 10; 2010, c. 7, s. 9; 2013, c. 38, s. 18. (2) Les articles 7 et 8 ne s’appliquent pas aux renseignements personnels auxquels le pu- blic a accès. L.R. (1985), ch. P-21, art. 69; L.R. (1985), ch. 1 (3 e suppl.), art. 12; 1990, ch. 3, art. 32; 1992, ch. 1, art. 143(A); 2004, ch. 11, art. 39; 2008, ch. 9, art. 10; 2010, ch. 7, art. 9; 2013, ch. 38, art. 18. Non-application des art. 7 et 8 Canadian Broadcasting Corporation 69.1 This Act does not apply to personal in- formation that the Canadian Broadcasting Cor- poration collects, uses or discloses for journal- istic, artistic or literary purposes and does not collect, use or disclose for any other purpose. 2006, c. 9, s. 188. 69.1 La présente loi ne s’applique pas aux renseignements personnels que la Société Ra- dio-Canada recueille, utilise ou communique uniquement à des fins journalistiques, artis- tiques ou littéraires. 2006, ch. 9, art. 188. Société Radio- Canada 277 278 This page was intentionally left blank. Court File No.: A-218-14 FEDERAL COURT OF APPEAL BETWEEN: DR. GÁBOR LUKÁCS Applicant – and – CANADIAN TRANSPORTATION AGENCY Respondent (Application under section 28 of the Federal Courts Act, R.S.C. 1985, c. F-7) APPLICANT’S RECORD VOLUME 2 (Appendix “B” – Book of Authorities) Dated: September 30, 2014 DR. GÁBOR LUKÁCS Halifax, NS [email protected] Applicant TO: CANADIAN TRANSPORTATION AGENCY 15 Eddy Street Gatineau, QC J8X 4B3 Odette Lalumière Tel: (819) 994 2226 Fax: (819) 953 9269 Solicitor for the Respondent, Canadian Transportation Agency TABLE OF CONTENTS OF VOLUME 2 1 A.B. v. Bragg Communications Inc., 2012 SCC 46 279 — paragraph 14 285 — paragraph 16 286 — paragraph 27 289 2 Apotex Inc. v. Canada (Attorney General) (C.A.), [1994] 1 F.C. 742 293 — paragraph 45 313 — paragraph 45 (continued) 314 3 Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 339 — paragraph 23 350 4 Canadian Tire Corporation v. Canadian Bicycle Manufacturers Association, 2006 FCA 56 369 — paragraph 9 373 — paragraph 10 374 5 Dunsmuir v. New Brunswick, 2008 SCC 9 377 — paragraph 58 402 — paragraph 60 403 6 El-Helou v. Courts Administration Service, 2012 CanLII 30713 (CA PSDPT) 435 — paragraphs 59 and 60 454 — paragraph 61 455 — paragraph 68 and 69 458 — paragraphs 70-72 459 — paragraph 77 461 7 Germain v. Saskatchewan (Automobile Injury Appeal Commission), 2009 SKQB 106 469 — paragraph 104 501 8 Lukács v. Canada (Transportation Agency), 2014 FCA 76 503 — paragraph 62 518 9 Lukács v. Canadian Transportation Agency, 2014 FCA 205 519 — paragraph 13 526 10 Nova Scotia (Attorney General) v. MacIntyre, [1982] 1 SCR 175 529 — page 8 536 — page 9 537 11 R. v. Canadian Broadcasting Corporation, 2010 ONCA 726 549 — paragraph 28 557 12 Ruby v. Canada (Solicitor General), 2002 SCC 75 565 — paragraph 60 587 13 Scott v. Scott, [1913] A.C. 417 (H.L) 597 — page 439 619 — page 440 620 — page 448 628 — page 477 657 14 Sherman v. Canada (Minister of National Revenue), 2004 FCA 29 669 15 Southam Inc. v. Canada (Minister of Employment and Immigration), [1987] 3 F.C. 329 675 — paragraphs 8 and 9 681 — paragraph 11 682 16 Tenenbaum v. Air Canada, Canadian Transportation Agency, Decision No. 219-A-2009 683 — paragraphs 45 and 46 689 17 Tipple v. Deputy Head (Department of Public Works and Government Services), 2009 PSLRB 110 693 — paragraph 13 723 18 Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 725 — paragraphs 1-8 728 — paragraph 11 729 — paragraph 11 (continued) 730 — paragraphs 26-28 733 19 Toronto Star Newspapers Ltd. v. Canada, 2007 FC 128 737 — paragraph 41 748 Indexed as: A.B. v. Bragg Communications Inc. A.B., by her Litigation Guardian, C.D., Appellant; v. Bragg Communications Incorporated, a body corporate and Halifax Herald Limited, a body corporate, Respondents, and BullyingCanada Inc., British Columbia Civil Liberties Association, Kids Help Phone, Canadian Civil Liberties Association, Privacy Commissioner of Canada, Newspapers Canada, Ad IDEM/Canadian Media Lawyers Association, Canadian Association of Journalists, Professional Writers Association of Canada, Book and Periodical Council, Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, Canadian Unicef Committee, Information and Privacy Commissioner of Ontario and Beyond Borders, Interveners. [2012] 2 S.C.R. 567 [2012] 2 R.C.S. 567 [2012] S.C.J. No. 46 [2012] A.C.S. no 46 2012 SCC 46 File No.: 34240. Supreme Court of Canada Heard: May 10, 2012; Judgment: September 27, 2012. Present: McLachlin C.J. and LeBel, Deschamps, Fish, Abella, Rothstein and Karakatsanis JJ. (31 paras.) Page 1 279 Appeal From: ON APPEAL FROM THE COURT OF APPEAL FOR NOVA SCOTIA Catchwords: Courts -- Open court principle -- Publication bans -- Children -- 15-year-old victim of sexualized cyberbullying applying for order requiring Internet provider to disclose identity of person(s) using IP address to publish fake and allegedly defamatory Facebook profile -- Victim requesting to proceed anonymously in application and seeking publication ban on contents of fake profile -- Whether victim required to demonstrate [page568] specific harm or whether court may find objectively discernable harm. Summary: A 15-year-old girl found out that someone had posted a fake Facebook profile using her picture, a slightly modified version of her name, and other particulars identifying her. The picture was accompanied by unflattering commentary about the girl's appearance along with sexually explicit references. Through her father as guardian, the girl brought an application for an order requiring the Internet provider to disclose the identity of the person(s) who used the IP address to publish the profile so that she could identify potential defendants for an action in defamation. As part of her application, she asked for permission to anonymously seek the identity of the creator of the profile and for a publication ban on the content of the profile. Two media groups opposed the request for anonymity and the ban. The Supreme Court of Nova Scotia granted the request that the Internet provider disclose the information about the publisher of the profile, but denied the request for anonymity and the publication ban because there was insufficient evidence of specific harm to the girl. The judge stayed that part of his order requiring the Internet provider to disclose the publisher's identity until either a successful appeal allowed the girl to proceed anonymously or until she filed a draft order which used her own and her father's real names. The Court of Appeal upheld the decision primarily on the ground that the girl had not discharged the onus of showing that there was evidence of harm to her which justified restricting access to the media. Held: The appeal should be allowed in part. The critical importance of the open court principle and a free press has been tenaciously embedded in the jurisprudence. In this case, however, there are interests that are sufficiently compelling to justify restricting such access: privacy and the protection of children from cyberbullying. Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law and results in the protection of young people's privacy rights based on age, not the sensitivity of the particular child. In an application involving cyberbullying, there is no [page569] need for a child to demonstrate that he or she personally conforms to this legal paradigm. The law attributes the Page 2 280 heightened vulnerability based on chronology, not temperament. While evidence of a direct, harmful consequence to an individual applicant is relevant, courts may also conclude that there is objectively discernable harm. It is logical to infer that children can suffer harm through cyberbullying, given the psychological toxicity of the phenomenon. Since children are entitled to protect themselves from bullying, cyber or otherwise, there is inevitable harm to them -- and to the administration of justice -- if they decline to take steps to protect themselves because of the risk of further harm from public disclosure. Since common sense and the evidence show that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and since the right to protection will disappear for most children without the further protection of anonymity, the girl's anonymous legal pursuit of the identity of her cyberbully should be allowed. In Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122, prohibiting identity disclosure was found to represent only minimal harm to press freedom. The serious harm in failing to protect young victims of bullying through anonymity, as a result, outweighs this minimal harm. But once the girl's identity is protected through her right to proceed anonymously, there is little justification for a publication ban on the non-identifying content of the profile. If the non-identifying information is made public, there is no harmful impact on the girl since the information cannot be connected to her. The public's right to open courts -- and press freedom -- therefore prevail with respect to the non-identifying Facebook content. Cases Cited Referred to: Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332; Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Canadian [page570] Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2, [2011] 1 S.C.R. 19; Canadian Broadcasting Corp. v. The Queen, 2011 SCC 3, [2011] 1 S.C.R. 65; R. v. Oakes, [1986] 1 S.C.R. 103; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877; R. v. D.B., 2008 SCC 25, [2008] 2 S.C.R. 3; R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; Toronto Star Newspaper Ltd. v. Ontario, 2012 ONCJ 27 (CanLII); R. v. L. (D.O.), [1993] 4 S.C.R. 419; Doe v. Church of Jesus Christ of Latter-Day Saints in Canada, 2003 ABQB 794, 341 A.R. 395; R. v. R.(W.), 2010 ONCJ 526 (CanLII); Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122; R. v. D.H., 2002 BCPC 464 (CanLII); F.N. (Re), 2000 SCC 35, [2000] 1 S.C.R. 880. Statutes and Regulations Cited Civil Procedure Rules, N.S. Reg. 370/2008. Criminal Code, R.S.C. 1985, c. C-46, s. 486. Page 3 281 Youth Criminal Justice Act, S.C. 2002, c. 1, s. 110. Treaties and Other International Instruments Convention on the Rights of the Child, Can. T.S. 1992 No. 3. Authors Cited "Cyberbullying: A Growing Problem", Science Daily, February 22, 2010 (online: www.sciencedaily.com/releases/2010/02/100222104939.htm). Eltis, Karen. "The Judicial System in the Digital Age: Revisiting the Relationship between Privacy and Accessibility in the Cyber Context" (2011), 56 McGill L.J. 289. Jones, Lisa M., David Finkelhor and Jessica Beckwith. "Protecting victims' identities in press coverage of child victimization" (2010), 11 Journalism 347. Lucock, Carole, and Michael Yeo. "Naming Names: The Pseudonym in the Name of the Law" (2006), 3 U. Ottawa L. & Tech. J. 53. Nova Scotia. Task Force on Bullying and Cyberbullying. Respectful and Responsible Relationships: There's No App for That: The Report of the Nova Scotia Task Force on Bullying and Cyberbullying. Nova Scotia: The Task Force, 2012. UNICEF Innocenti Research Centre. Child Safety Online: Global challenges and strategies. Florence, Italy: UNICEF, 2011. Winn, Peter A. "Online Court Records: Balancing Judicial Accountability and Privacy in an Age of Electronic Information" (2004), 79 Wash. L. Rev. 307. [page571] History and Disposition: APPEAL from a judgment of the Nova Scotia Court of Appeal (MacDonald C.J.N.S. and Saunders and Oland JJ.A.), 2011 NSCA 26, 301 N.S.R. (2d) 34, 953 A.P.R. 34, 228 C.R.R. (2d) 181, 97 C.P.C. (6) 54, 80 C.C.L.T. (3d) 180, [2011] N.S.J. No. 113 (QL), 2011 CarswellNS 135, affirming a decision of LeBlanc J., 2010 NSSC 215, 293 N.S.R. (2d) 222, 928 A.P.R. 222, 97 C.P.C. (6) 24, [2010] N.S.J. No. 360 (QL), 2010 CarswellNS 397. Appeal allowed in part. Counsel: Page 4 282 Michelle C. Awad, Q.C., and Jane O'Neill, for the appellant. Daniel W. Burnett and Paul Brackstone, for the amicus curiae. Written submissions only by Brian F. P. Murphy and Wanda M. Severns, for the intervener BullyingCanada Inc. Marko Vesely and M. Toby Kruger, for the intervener the British Columbia Civil Liberties Association. Mahmud Jamal, Jason MacLean, Carly Fidler and Steven Golick, for the intervener Kids Help Phone. Iris Fischer and Dustin Kenall, for the intervener the Canadian Civil Liberties Association. Joseph E. Magnet and Patricia Kosseim, for the intervener the Privacy Commissioner of Canada. Ryder Gilliland and Adam Lazier, for the interveners Newspapers Canada, Ad IDEM/Canadian Media Lawyers Association, the Canadian Association of Journalists, the Professional Writers Association of Canada and the Book and Periodical Council. Tamir Israel, for the intervener the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic. Jeffrey S. Leon, Ranjan K. Agarwal and Daniel Holden, for the intervener the Canadian Unicef Committee. [page572] Written submissions only by William S. Challis and Stephen McCammon, for the intervener the Information and Privacy Commissioner of Ontario. Written submissions only by Jonathan M. Rosenthal, for the intervener Beyond Borders. No one appeared for the respondents. The judgment of the Court was delivered by 1 ABELLA J.:-- On March 4, 2010, a 15-year-old girl, A.B., found out that someone had posted a Facebook profile using her picture, a slightly modified version of her name, and other particulars Page 5 283 identifying her. Accompanying the picture was some unflattering commentary about the girl's appearance along with sexually explicit references. The page was removed by the internet provider later that month. 2 Once notified of the situation, Facebook's counsel in Palo Alto, California provided the IP address associated with the account, which was said to be located in Dartmouth, Nova Scotia. The girl's counsel determined that it was an "Eastlink address" in Dartmouth, Nova Scotia. Further inquiry confirmed that the respondent Bragg Communications owns Eastlink, a provider of Internet and entertainment services in Atlantic Canada. 3 Eastlink consented to giving more specific information about the address if it had authorization from a court to do so. As a result, A.B., through her father as guardian, brought a preliminary application under Nova Scotia's Civil Procedure Rules, N.S. Reg. 370/2008, for an order requiring Eastlink to disclose the identity of the person(s) who used the IP address to publish the profile to assist her in identifying potential defendants for an action in defamation. She stated in her Notice of Application that she had "suffered harm and seeks to minimize the chance of further harm" (A.R., at p. 98). As part [page573] of her application, she asked the court for permission to seek the identity of the creator of the fake profile anonymously and for a publication ban on the content of the fake Facebook profile. She did not ask that the hearing be held in camera. 4 Eastlink did not oppose her motion. The Halifax Herald and Global Television became aware of the girl's application when notice of the request for a publication ban appeared as an automatic advisory on the Nova Scotia publication ban media advisory website. They advised the court that they opposed both of the girl's requests: the right to proceed anonymously and a publication ban. 5 The court granted the order requiring Eastlink to disclose the information about the publisher of the fake Facebook profile on the basis that a prima facie case of defamation had been established and there were no other means of identifying the person who published the defamation. But it denied the request for anonymity and the publication ban because there was insufficient evidence of specific harm to the girl. 6 The judge stayed that part of his order requiring Eastlink to disclose the publisher's identity until either a successful appeal allowed the girl to proceed anonymously, or until she filed a draft order which used her own and her father's real names. 7 The decision was upheld by the Court of Appeal primarily on the ground that the girl had not discharged the onus of showing that there was real and substantial harm to her which justified restricting access to the media. [page574] Page 6 284 8 Both courts ordered costs against the girl in favour of the two media outlets. 9 In my view, both courts erred in failing to consider the objectively discernable harm to A.B. I agree with her that she should be entitled to proceed anonymously, but once her identity has been protected, I see no reason for a further publication ban preventing the publication of the non-identifying content of the fake Facebook profile. Analysis 10 A.B.'s appeal to this Court is based on what she says is the failure to properly balance the competitive risks in this case: the harm inherent in revealing her identity versus the risk of harm to the open court principle in allowing her to proceed anonymously and under a publication ban. Unless her privacy is protected, she argued, young victims of sexualized cyberbullying like her will refuse to proceed with their protective claims and will, as a result, be denied access to justice. 11 The open court principle requires that court proceedings presumptively be open and accessible to the public and to the media. This principle has been described as a "hallmark of a democratic society" (Vancouver Sun (Re), [2004] 2 S.C.R. 332, at para. 23) and is inextricably tied to freedom of expression. A.B. requested two restrictions on the open court principle: the right to proceed anonymously and a publication ban on the content of the fake Facebook profile. The inquiry is into whether each of these measures is necessary to protect an important legal interest and impairs free expression as little as possible. If alternative measures can just as effectively protect the interests engaged, the restriction is unjustified. If no such alternatives exist, the inquiry turns to whether the proper balance was struck between the open court principle [page575] and the privacy rights of the girl: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, [2001] 3 S.C.R. 442. 12 The Halifax Herald and Global Television did not appear in the proceedings before this Court. Their "position" was, however, ably advanced by an amicus curiae. In his view, like the Court of Appeal, the mere fact of the girl's age did not, in the absence of evidence of specific harm to her, trump the open court principle and freedom of the press. 13 Since Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, the critical importance of the open court principle and a free press has been tenaciously embedded in the jurisprudence and need not be further revisited here. What does need some exploration, however, are the interests said to justify restricting such access in this case: privacy and the protection of children from cyberbullying. These interests must be shown to be sufficiently compelling to warrant restrictions on freedom of the press and open courts. As Dickson J. noted in Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, there are cases in which the protection of social values must prevail over openness (pp. 186-87). 14 The girl's privacy interests in this case are tied both to her age and to the nature of the victimization she seeks protection from. It is not merely a question of her privacy, but of her privacy Page 7 285 from the relentlessly intrusive humiliation of sexualized online bullying: Carole Lucock and Michael Yeo, "Naming Names: The Pseudonym in the Name of the Law" (2006), 3 U. Ottawa L. & Tech. J. 53, at pp. 72-73; Karen Eltis, "The Judicial System in the Digital Age: Revisiting the Relationship [page576] between Privacy and Accessibility in the Cyber Context" (2011), 56 McGill L.J. 289, at p. 302. 15 The amicus curiae pointed to the absence of evidence of harm from the girl about her own emotional vulnerability. But, while evidence of a direct, harmful consequence to an individual applicant is relevant, courts may also conclude that there is objectively discernable harm. 16 This Court found objective harm, for example, in upholding the constitutionality of Quebec's Rules of Practice that limited the media's ability to film, take photographs, and conduct interviews in relation to legal proceedings (in Canadian Broadcasting Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 19), and in prohibiting the media from broadcasting a video exhibit (in Canadian Broadcasting Corp. v. The Queen, [2011] 1 S.C.R. 65). In the former, Deschamps J. held (at para. 56) that the Dagenais/Mentuck test requires neither more nor less than the one from R. v. Oakes, [1986] 1 S.C.R. 103. In other words, absent scientific or empirical evidence of the necessity of restricting access, the court can find harm by applying reason and logic: RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 72; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877, at para. 91. 17 Recognition of the inherent vulnerability of children has consistent and deep roots in Canadian law. This results in protection for young people's privacy under the Criminal Code, R.S.C. 1985, c. C-46 (s. 486), the Youth Criminal Justice Act, S.C. 2002, c. 1 (s. 110), and child welfare legislation, not to mention international protections such as the Convention on the Rights of the Child, Can. T.S. 1992 No. 3, all based on age, not the sensitivity of the particular child. As a result, in an application involving sexualized cyberbullying, there is no need for a particular child to demonstrate that she [page577] personally conforms to this legal paradigm. The law attributes the heightened vulnerability based on chronology, not temperament: See R. v. D.B., [2008] 2 S.C.R. 3, at paras. 41, 61 and 84-87; R. v. Sharpe, [2001] 1 S.C.R. 45, at paras. 170-74. 18 This led Cohen J. in Toronto Star Newspaper Ltd. v. Ontario, 2012 ONCJ 27 (CanLII), to explain the importance of privacy in the specific context of young persons who are participants in the justice system: The concern to avoid labeling and stigmatization is essential to an understanding of why the protection of privacy is such an important value in the Act. However it is not the only explanation. The value of the privacy of young persons under the Act has deeper roots than exclusively pragmatic considerations would suggest. We must also look to the Charter, because the protection of privacy of young persons has undoubted constitutional significance. Page 8 286 Privacy is recognized in Canadian constitutional jurisprudence as implicating liberty and security interests. In Dyment, the court stated that privacy is worthy of constitutional protection because it is "grounded in man's physical and moral autonomy," is "essential for the well-being of the individual," and is "at the heart of liberty in a modern state" (para. 17). These considerations apply equally if not more strongly in the case of young persons. Furthermore, the constitutional protection of privacy embraces the privacy of young persons, not only as an aspect of their rights under section 7 and 8 of the Charter, but by virtue of the presumption of their diminished moral culpability, which has been found to be a principle of fundamental justice under the Charter. ... ... the protection of the privacy of young persons fosters respect for dignity, personal integrity and autonomy of the young person. [Emphasis added; paras. 40-41 and 44.] 19 And in R. v. L. (D.O.), [1993] 4 S.C.R. 419, L'Heureux-Dubé J. upheld the constitutionality of [page578] the Criminal Code provisions that allowed for the admission of videotape evidence from child complainants in sexual assault cases, based on the need to reduce the stress and trauma suffered by child complainants in the criminal justice system: pp. 445-46; see also Doe v. Church of Jesus Christ of Latter-Day Saints in Canada, 2003 ABQB 794, 341 A.R. 395, at para. 9. 20 It is logical to infer that children may suffer harm through cyberbullying. Such a conclusion is consistent with the psychological toxicity of the phenomenon described in the Report of the Nova Scotia Task Force on Bullying and Cyberbullying, chaired by Prof. A. Wayne MacKay, the first provincial task force focussed on online bullying: (Respectful and Responsible Relationships: There's No App for That: The Report of the Nova Scotia Task Force on Bullying and Cyberbullying (2012)). The Task Force was created as a result of "[a] tragic series of youth suicides" (p. 4). 21 The Report defined bullying as ... behaviour that is intended to cause, or should be known to cause, fear, intimidation, humiliation, distress or other forms of harm to another person's body, feelings, self-esteem, reputation or property. Bullying can be direct or indirect, and can take place by written, verbal, physical or electronic means, or any other form of expression. [pp. 42-43] Its harmful consequences were described as "extensive", including loss of self-esteem, anxiety, fear and school drop-outs (p. 4). Moreover, victims of bullying were almost twice as likely to report that they attempted suicide compared to young people who had not been bullied (p. 86): See also R. v. R.(W.), 2010 ONCJ 526 (CanLII), at paras. 11 and 16, and "Cyberbullying: A Growing Problem", Science Daily (February 22, 2010, online). Page 9 287 22 The Report also noted that cyberbullying can be particularly harmful because the [page579] content can be spread widely, quickly - and anonymously: ... The immediacy and broad reach of modern electronic technology has made bullying easier, faster, more prevalent, and crueler than ever before... . ... cyberbullying follows you home and into your bedroom; you can never feel safe, it is "non-stop bullying"... . cyberbullying is particularly insidious because it invades the home where children normally feel safe, and it is constant and inescapable because victims can be reached at all times and in all places... . The anonymity available to cyberbullies complicates the picture further as it removes the traditional requirement for a power imbalance between the bully and victim, and makes it difficult to prove the identity of the perpetrator. Anonymity allows people who might not otherwise engage in bullying behaviour the opportunity to do so with less chance of repercussion... . ... The cyber-world provides bullies with a vast unsupervised public playground ... . [pp. 11-12] 23 In addition to the psychological harm of cyberbullying, we must consider the resulting inevitable harm to children - and the administration of justice - if they decline to take steps to protect themselves because of the risk of further harm from public disclosure. 24 Professor MacKay's Report is consistent with the inference that, absent a grant of anonymity, a bullied child may not pursue responsive legal action. He notes that half of all bullying goes unreported, largely out of fear that reporting will not be met with solutions or understanding sufficient to overcome the fear of retaliation: p. 10. One of his recommendations, as a result, was that mechanisms be developed to report cyberbullying anonymously (p. 66; Appendix E; see also Peter A. Winn, "Online Court Records: Balancing Judicial Accountability and Privacy in an Age of Electronic [page580] Information" (2004), 79 Wash. L. Rev. 307, at p. 328). 25 In the context of sexual assault, this Court has already recognized that protecting a victim's privacy encourages reporting: Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122. It does not take much of an analytical leap to conclude that the likelihood of a child protecting himself or herself from bullying will be greatly enhanced if the protection can be sought anonymously. As the Kids Help Phone factum constructively notes (at para. 16), protecting children's anonymity could help ensure that they will seek therapeutic assistance and other remedies, including legal remedies where appropriate. In particular, "[w]hile media publicity is likely to have a negative effect on all victims, there is evidence to be particularly concerned about Page 10 288 child victims... . Child victims need to be able to trust that their privacy will be protected as much as possible by those whom they have turned to for help": Lisa M. Jones, David Finkelhor and Jessica Beckwith, "Protecting victims' identities in press coverage of child victimization" (2010), 11 Journalism 347, at pp. 349-50. 26 Studies have confirmed that allowing the names of child victims and other identifying information to appear in the media can exacerbate trauma, complicate recovery, discourage future disclosures, and inhibit cooperation with authorities. (See, e.g., UNICEF Innocenti Research Centre, Child Safety Online: Global challenges and strategies (2011), at pp. 15-16; and R. v. D.H., 2002 BCPC 464 (CanLII), at para. 8). 27 If we value the right of children to protect themselves from bullying, cyber or otherwise, if common sense and the evidence persuade us that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization [page581] upon publication, and if we accept that the right to protection will disappear for most children without the further protection of anonymity, we are compellingly drawn in this case to allowing A.B.'s anonymous legal pursuit of the identity of her cyberbully. 28 The answer to the other side of the balancing inquiry - what are the countervailing harms to the open courts principle and freedom of the press - has already been decided by this Court in Canadian Newspapers. In that case, the constitutionality of the provision in the Criminal Code prohibiting disclosure of the identity of sexual assault complainants was challenged on the basis that its mandatory nature unduly restricted freedom of the press. In upholding the constitutionality of the provision, Lamer J. observed that: While freedom of the press is nonetheless an important value in our democratic society which should not be hampered lightly, it must be recognized that the limits imposed by [prohibiting identity disclosure] on the media's rights are minimal... . Nothing prevents the media from being present at the hearing and reporting the facts of the case and the conduct of the trial. Only information likely to reveal the complainant's identity is concealed from the public. [Emphasis added; p. 133.] In other words, the harm has been found to be "minimal". This perspective of the relative insignificance of knowing a party's identity was confirmed by Binnie J. in F.N. where he referred to identity in the context of the Young Offenders legislation as being merely a "sliver of information": F.N. (Re), [2000] 1 S.C.R. 880, at para. 12. 29 The acknowledgment of the relative unimportance of the identity of a sexual assault victim is a complete answer to the argument that the non-disclosure of the identity of a young victim of online sexualized bullying is harmful to the exercise of press freedom or the open courts principle. Canadian Newspapers clearly establishes that the [page582] benefits of protecting such victims through anonymity outweigh the risk to the open court principle. Page 11 289 30 On the other hand, as in Canadian Newspapers, once A.B.'s identity is protected through her right to proceed anonymously, there seems to me to be little justification for a publication ban on the non-identifying content of the fake Facebook profile. If the non-identifying information is made public, there is no harmful impact since the information cannot be connected to A.B. The public's right to open courts and press freedom therefore prevail with respect to the non-identifying Facebook content. 31 I would allow the appeal in part to permit A.B. to proceed anonymously in her application for an order requiring Eastlink to disclose the identity of the relevant IP user(s). I would, however, not impose a publication ban on that part of the fake Facebook profile that contains no identifying information. I would set aside the costs orders against A.B. in the prior proceedings but would not make a costs order in this Court. Appeal allowed in part. Solicitors: Solicitors for the appellant: McInnes Cooper, Halifax. Solicitors appointed by the Court as amicus curiae: Owen Bird Law Corporation, Vancouver. Solicitors for the intervener BullyingCanada Inc.: Murphy Group, Moncton. Solicitors for the intervener the British Columbia Civil Liberties Association: Lawson Lundell, Vancouver. Solicitors for the intervener Kids Help Phone: Osler, Hoskin & Harcourt, Toronto. [page583] Solicitors for the intervener the Canadian Civil Liberties Association: Blake, Cassels & Graydon, Toronto. Solicitors for the intervener the Privacy Commissioner of Canada: Office of the Privacy Commissioner of Canada, Ottawa; University of Ottawa, Ottawa. Solicitors for the intervener Newspapers Canada, Ad IDEM/Canadian Media Lawyers Association, the Canadian Association of Journalists, the Professional Writers Association of Canada and the Book and Periodical Council: Blake, Cassels & Graydon, Toronto. Solicitor for the intervener the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic: University of Ottawa, Ottawa. Page 12 290 Solicitors for the intervener the Canadian Unicef Committee: Bennett Jones, Toronto. Solicitor for the intervener the Information and Privacy Commissioner of Ontario: Information and Privacy Commissioner of Ontario, Toronto. Solicitor for the intervener Beyond Borders: Jonathan M. Rosenthal, Toronto. Page 13 291 292 Indexed as: Apotex Inc. v. Canada (Attorney General) (C.A.) Merck & Co., Inc. and Merck Frosst Canada Inc. (Appellants) (Respondents) v. Apotex Inc. (Respondent) (Applicant) and Attorney General of Canada and The Minister of National Health and Welfare (Respondents) (Respondents) [1994] 1 F.C. 742 [1993] F.C.J. No. 1098 Court File No. A-457-93 Federal Court of Canada - Court of Appeal Mahoney, Robertson and McDonald JJ.A. Heard: Ottawa, August 31 and September 1, 1993. Judgment: October 22, 1993. Food and drugs -- Appeal and cross-appeal from Trial Division decision granting mandamus and denying prohibition with respect to generic drug notice of compliance (NOC) -- Under Food and Drugs Act, "new drugs" must meet health and safety requirements -- NOC granted if drug found effective, safe -- Scientific safety and efficacy conditions met -- Apotex having vested right to NOC despite Minister's failure to render decision pending enactment of Patent Act Amendment Act, 1992 (Bill C-91) -- Narrow scope of ministerial discretion -- Pending legislative policy irrelevant consideration. Patents -- Bill C-91 enacted to protect innovator pharmaceutical companies' distribution and sales rights to patented drugs -- Patented Medicines Regulations prohibiting issuance of NOCs in respect of patent-linked drugs -- NOCs, patent rights linked, not mutually dependent -- Mandamus not intended to facilitate patent infringement -- Regulations not procedural per se -- Generic drug manufacturer's vested right to NOC not divested by Bill C-91, Regulations, ss. 5(1),(2). Judicial review -- Prerogative writs -- Mandamus -- Generic drug manufacturer seeking Page 1 293 mandamus to compel Minister to issue notice of compliance -- Case law on requirements for mandamus -- Available where duty to act not owing at time application filed -- Delay for seeking legal advice not bar to mandamus -- Court having discretion to invoke balance of convenience test as ground for refusing mandamus -- Criteria for exercise of discretion -- No legal basis to deny mandamus herein on ground of balance of convenience. Federal Court jurisdiction -- Appeal Division -- Jurisdiction under Federal Court Act, s. 18 not ousted by paramountcy provision in Bill C-91 (Patent Act Amendment Act, 1992) -- Patent Act, s. 55.2(5) not privative clause insulating Minister, legislation from judicial review. These were an appeal and a cross-appeal from a decision by Dubé J. allowing an application for mandamus to issue a notice of compliance (NOC) with respect to Apotex's generic version of the drug enalapril and denying the appellants' application for prohibition. The Patent Act Amendment Act, 1992 (Bill C-91), which was given Royal Assent on February 4, 1993, was enacted in order to protect innovator pharmaceutical companies' distribution and sales rights to patented drugs. Bill C-91 came into force on February 15, 1993 with the exception of the new section 55.2 of the Patent Act which, together with the Patented Medicines Regulations, were not brought into effect until March 12, 1993. Under the Food and Drugs Act (FDA), the Minister of National Health and Welfare must ensure that new drugs meet health and safety requirements. The manufacturer of a new drug must file a New Drug Submission (NDS) setting out the drug's qualities, ingredients and methods of manufacture and purification. The respondent, Apotex, after filing a NDS in respect of its generic drug Apo-Enalapril, sought an order of mandamus to compel the Minister to issue a notice of compliance with respect to that drug. Apotex's NDS was incomplete when it filed its mandamus application; nevertheless, by February 3, 1993, the new drug met all of the scientific safety and efficacy conditions required for a NOC to issue. Although the NDS had cleared the scientific and regulatory review process, the Department's ADM and DM decided to seek legal advice regarding the authority of the Minister or his ADM to issue the NOC in view of the impending passage of Bill C-91. The appellant, Merck, also forwarded a number of legal opinions to the Minister and then sought prohibition to prevent the Minister from issuing the notice of compliance. The Trial Judge ruled that the Minister did not possess the broad discretion to justify his refusal to issue the NOC and that the delay in issuing it was not warranted. He also rejected the argument that to issue mandamus when a new regulatory regime was pending would "frustrate the will of Parliament". This appeal raised a number of issues, namely: 1) the principles governing mandamus and the question of prematurity; 2) whether Apotex had a vested right to a NOC by March 12, 1993; 3) the balance of convenience; 4) whether Apotex's vested right to a NOC was divested by Bill C-91 and the Patented Medicines Regulations and 5) the jurisdiction of the Court. By cross-appeal, the Minister argued that the Trial Judge erred in finding the delay in issuing the NOC to be unwarranted. Held, the appeal and cross-appeal should be dismissed. Page 2 294 1) Several principal requirements must be satisfied before mandamus will issue. First, there must be a public legal duty to act owed to the applicant. Generally, mandamus cannot issue with respect to a duty owed to the Crown. The Minister had a duty to act which was owed to Apotex. Merck's submission, that the Minister owed no duty to Apotex at the time it commenced its judicial review application on December 22, 1992 or on the hearing date, was partly correct. An order of mandamus will not lie to compel an officer to act in a specified manner if he is under no obligation to act as of the hearing date, but that rule was not valid if applied as of the date that the application for mandamus was filed. While it is open to a respondent to pursue dismissal of an application where the duty to perform has yet to arise, in the absence of compelling reasons, an application for mandamus should not be defeated on the ground that it was initiated prematurely. Provided that the conditions precedent to the exercise of the duty have been satisfied at the time of the hearing, the application should be assessed on its merits. 2) If a decision-maker has an unfettered discretion which he has not exercised as of the date a new law takes effect, the applicant cannot successfully assert either a vested right or even the right to have the decision-maker render a decision. A "vested right" must be distinguished from a "mere hope or expectation". The scope of a decision-maker's discretion is directly contingent upon the characterization of various considerations as "relevant or irrelevant" to its exercise. The Food and Drug Regulations restrict the factors to be considered by the Minister in the proper exercise of his discretion to those concerning a drug's safety and efficacy. They neither expressly nor implicitly contemplate the broad scope of ministerial discretion advocated by Merck. It cannot be said that the time needed to enable a decision-maker to seek and obtain legal advice in any decision-making process is of itself a basis for denying mandamus. That self-imposed obligation cannot of itself deprive Apotex of its right to mandamus. In the absence of intervening legislation, the "legal advice" issue would not have arisen. The legal advice sought herein had no bearing on the exercise of the Minister's narrowly circumscribed discretion. Moreover, to deny mandamus because of legal concerns generated by a party adverse in interest (Merck) would be to judicially condone what might be regarded as a tactical manoeuvre intended to obfuscate and delay the decision-making process. Pending legislative policy was not a consideration relevant to the exercise of the Minister's discretion. It could not be said that, in the exercise of his statutory power under the Food and Drug Regulations, the Minister was entitled to have regard to the provisions of Bill C-91 after enactment but prior to proclamation. Apotex had a vested right to the NOC notwithstanding the Minister's failure to render a decision by March 12, 1993. 3) The case law on mandamus reveals a number of techniques resorted to by courts in balancing competing interests. Any inclination to engage in a balancing of interests must be measured strictly against the rule of law. Having regard to the relevant jurisprudence, it had to be concluded that this Court possesses discretion to refuse mandamus on the ground of balance of convenience. The cases demonstrate three factual patterns in which the balance of convenience test has been implicitly acknowledged. First, there are those cases where the administrative cost or chaos that would result from granting such relief is obvious and unacceptable. The second ground for denying mandamus appears to arise in instances where potential public health and safety risks are perceived to outweigh Page 3 295 an individual's right to pursue personal or economic interests. In this case, there was no issue with respect to administrative chaos or public health and safety. The third line of authority attempts to establish a principle by which it can be determined whether a property owner has acquired a vested right to a building permit pending approval of a by-law amendment. That principle is of no relevance to this case nor to the issue of the Court's discretion to refuse mandamus on the ground of balance of convenience. There was no legal basis upon which the "balance of convenience" test could be applied to deny Apotex the relief sought. 4) The Patented Medicines Regulations prohibit the issuance of NOCs in respect of "patent-linked" drugs. Subsections 5(1) and (2) thereof refer to NDSs filed before March 12, 1993. While NOCs and patent rights are linked, they have never been mutually dependent. Practically speaking, Merck is seeking an interlocutory injunction against Apotex with respect to possible patent infringement without having to satisfy the conditions precedent imposed at law to the granting of such relief. An order in the nature of mandamus cannot be viewed as an instrument which "facilitates" patent infringement. The Patented Medicines Regulations are not procedural regulations per se. The imposition of a criterion that a NOC cannot issue with respect to a patent-linked NDS is clearly a substantive change in the law and hence subject to the rules of statutory construction applicable to legislation purporting to affect vested rights. Subsections 5(1) and (2) do not manifestly seek to divest persons of acquired rights; they are at best ambiguous. While Parliament has the authority to pass retroactive legislation, thereby divesting persons of an acquired right, vested rights could not be divested by the Patented Medicines Regulations unless the enabling legislation, that is the Patent Act or Bill C-91, implicitly or explicitly authorize such encroachments. Bill C-91 contains no provision specifically authorizing regulations to interfere with existing or vested rights except as to compulsory licences granted after December 20, 1991. 5) The jurisdiction of this Court was not "ousted" by the paramountcy provision in Bill C-91. Subsection 55.2(5) of the Patent Act could not be said to be paramount to section 18 of the Federal Court Act and could not be construed as a privative clause insulating the Minister and the relevant legislation from judicial review. Statutes and Regulations Judicially Considered Clean Water Act, R.S.A. 1980, c. C-13, s. 3. Criminal Code, R.S.C. 1970, c. C-34. Criminal Law Amendment Act, 1977, S.C. 1976-77, c. 53. Federal Court Act, R.S.C., 1985, c. F-7, s. 18 (as am. by S.C. 1990, c. 8, s. 4). Food and Drug Regulations, C.R.C., c. 870, ss. C.08.002 (as am. by SOR/85-143, s. 1), C.08.004 (as am. idem, s. 3, SOR/88-257, s. 1). Food and Drugs Act, R.S.C., 1985, c. F-27. Interpretation Act, R.S.C. 1952, c. 158. Interpretation Act, S.C. 1967-68, c. 7, ss. 36(c), 37(c). Interpretation Act, R.S.C., 1985, c. I-21, s. 44(c). Page 4 296 Orders and Regulations respecting Patents of Invention made under The War Measures Act, 1914, (1914), 48 The Canada Gazette 1107. Patent Act, S.C. 1923, c. 23, s. 17. Patent Act, R.S.C. 1952, c. 203, s. 41(3) (as am. by S.C. 1968-69, c. 49, s. 1). Patent Act, R.S.C., 1985, c. P-4, ss. 39(4),(14), 55.2 (as enacted by S.C. 1993, c. 2, s. 4). Patent Act Amendment Act, 1992, S.C. 1993, c. 2, ss. 3, 4, 12(1). Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, ss. 5, 6, 7(1). War Measures Act, 1914 (The), S.C. 1914 (2nd Sess.), c. 2. Cases Judicially Considered Applied: Merck & Co. Inc. v. Sherman & Ulster Ltd., Attorney-General of Canada, Intervenant (1971), 65 C.P.R. 1 (Ex. Ct.); appeal to S.C.C. dismissed [1972] S.C.R. vi; Director of Public Works v. Ho Po Sang, [1961] A.C. 901 (P.C.); A.G. for British Columbia et al. v. Parklane Private Hospital Ltd., [1975] 2 S.C.R. 47; (1974), 47 D.L.R. (3d) 57; [1974] 6 W.W.R. 72; 2 N.R. 305. Distinguished: Ottawa, City of v. Boyd Builders Ltd., [1965] S.C.R. 408; (1965), 50 D.L.R. (2d) 704; Engineers' and Managers' Association v. Advisory, Conciliation and Arbitration Service, [1980] 1 W.L.R. 302 (H.L.); Wimpey Western Ltd. and W-W-W Developments Ltd. v. Director of Standards and Approvals of the Department of the Environment, Minister of the Environment and Province of Alberta (1983), 49 A.R. 360; 3 Admin. L.R. 247; 23 Alta. L.R. (2d) 193 (C.A.). Considered: Pfizer Canada Inc. v. Minister of National Health & Welfare et al. (1986), 12 C.P.R. (3d) 438 (F.C.A.); leave to appeal to S.C.C. refused (1987), 14 C.P.R. (3d) 447; 76 N.R. 397; Glaxo Canada Inc. v. Canada (Minister of National Health and Welfare), [1988] 1 F.C. 422; (1987), 43 D.L.R. (4th) 273; 16 C.I.P.R. 55; 18 C.P.R. (3d) 206; 16 F.T.R. 81; additional reasons at (1988), 19 C.I.P.R. 120; 19 C.P.R. (3d) 374 (T.D.); affd (1990), 68 D.L.R. (4th) 761; 31 C.P.R. (3d) 29; 107 N.R. 195 (F.C.A.); O'Grady v. Whyte, [1983] 1 F.C. 719; (1982), 138 D.L.R. (3d) 167; 42 N.R. 608 (C.A.); Karavos v. Toronto & Gillies, [1948] 3 D.L.R. 294; [1948] O.W.N. 17 (Ont. C.A.); Distribution Canada Inc. v. M.N.R., [1991] 1 F.C. 716; (1990), 46 Admin. L.R. 34; 39 F.T.R. 127 (T.D.); affd [1993] 2 F.C. 26 (C.A.); Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. (1965), 113 C.L.R. 177 (Aust. H.C.); Martinoff v. Gossen, [1979] 1 F.C. 327 (T.D.); Lemyre v. Trudel, [1978] 2 F.C. 453; (1978), 41 C.C.C. (2d) 373 (T.D.); affd [1979] 2 F.C. 362; (1979), 49 C.C.C. (2d) 188 (C.A.); Page 5 297 Abell v. Commissioner of Royal Canadian Mounted Police (1979), 49 C.C.C. (2d) 193; 3 Sask. R. 181 (C.A.); Re Central Canada Potash Co. Ltd. et al. and Minister of Mineral Resources for Saskatchewan (1972), 30 D.L.R. (3d) 480; [1972] 6 W.W.R. 62 (Sask. Q.B.); affd (1973), 32 D.L.R. (3d) 107; [1973] 1 W.W.R. 193 (Sask. C.A.); appeal to S.C.C. dismissed (1973), 38 D.L.R. (3d) 317; [1973] 2 W.W.R. 672; Fitzgerald v. Muldoon, [1976] 2 N.Z.L.R. 615 (S.C.). Referred to: Apotex Inc. v. Attorney General of Canada et al. (1986), 11 C.P.R. (3d) 43; 10 F.T.R. 271 (F.C.T.D.); application for reconsideration denied (1986), 11 C.P.R. (3d) 62 (F.C.T.D.); affd (1986), 12 C.P.R. (3d) 95; 77 N.R. 71 (F.C.A.); leave to appeal to S.C.C. refused (1987), 14 C.P.R. (3d) 447; Apotex Inc. v. Canada (Attorney General) et al. (1993), 59 F.T.R. 85 (F.C.T.D.); C.E. Jamieson & Co. (Dominion) v. Canada (Attorney General), [1988] 1 F.C. 590; (1987), 46 D.L.R. (4th) 582; 37 C.C.C. (3d) 193; 12 F.T.R. 167 (T.D.); Mensinger v. Canada (Minister of Employment and Immigration), [1987] 1 F.C. 59; (1986), 24 C.R.R. 260; 5 F.T.R. 64 (T.D.); Minister of Employment and Immigration v. Hudnik, [1980] 1 F.C. 180; (1979), 103 D.L.R. (3d) 308 (C.A.); Jefford v. Canada, [1988] 2 F.C. 189; (1988), 47 D.L.R. (4th) 321; 28 C.L.R. 266 (C.A.); Winegarden v. Public Service Commission and Canada (Minister of Transport) (1986), 5 F.T.R. 317 (F.C.T.D.); Rossi v. The Queen, [1974] 1 F.C. 531; (1974), 17 C.C.C. (2d) 1 (T.D.); Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), [1989] 3 F.C. 309; [1989] 4 W.W.R. 526; (1989), 37 Admin. L.R. 39; 3 C.E.L.R. (N.S.) 287; 26 F.T.R. 245 (T.D.); affd [1990] 2 W.W.R. 69; (1989), 38 Admin. L.R. 138; 4 C.E.L.R. (N.S.) 1; 99 N.R. 245 (F.C.A.); Bedard v. Correctional Service of Canada, [1984] 1 F.C. 193 (T.D.); Carota v. Jamieson, [1979] 1 F.C. 735 (T.D.); affd [1980] 1 F.C. 790 (C.A.); Nguyen v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 232 (C.A.); Rothmans of Pall Mall Canada Limited v. Minister of National Revenue (No. 1), [1976] 2 F.C. 500; (1976), 67 D.L.R. (3d) 505; [1976] C.T.C. 339; 10 N.R. 153 (C.A.); Secunda Marine Services Ltd. v. Canada (Minister of Supply & Services) (1989), 38 Admin. L.R. 287; 27 F.T.R. 161 (F.C.T.D.); Szoboszloi v. Chief Returning Officer of Canada, [1972] F.C. 1020 (T.D.); Hutchins v. Canada (National Parole Board), [1993] 3 F.C. 505 (C.A.); Thorson v. Attorney General of Canada et al., [1975] 1 S.C.R. 138; (1974), 43 D.L.R. (3d) 1; 1 N.R. 225; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; (1975), 12 N.S.R. (2d) 85; 55 D.L.R. (3d) 632; 32 C.R.N.S. 376; 5 N.R. 43; Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575; (1981), 130 D.L.R. (3d) 588; Page 6 298 [1982] 1 W.W.R. 97; 12 Sask.R. 420; 64 C.C.C. (2d) 97; 24 C.P.C. 62; 24 C.R. (3d) 352; 39 N.R. 331; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607; (1986), 33 D.L.R. (4th) 321; [1987] 1 W.W.R. 603; 23 Admin. L.R. 197; 17 C.P.C. (2d) 289; 71 N.R. 338; Bhatnager v. Minister of Employment and Immigration, [1985] 2 F.C. 315 (T.D.); Restrictive Trade Practices Commission v. Director of Investigation and Research, Combines Investigation Act, [1983] 2 F.C. 222; (1983), 145 D.L.R. (3d) 540; 70 C.P.R. (2d) 145; 48 N.R. 305 (C.A.); revg [1983] 1 F.C. 520; (1982), 142 D.L.R. (3d) 333; 67 C.P.R. (2d) 172 (T.D.); Maple Lodge Farms Ltd. v. Government of Canada, [1980] 2 F.C. 458 (T.D.); affd Maple Lodge Farms Ltd. v. R., [1981] 1 F.C. 500; (1980), 114 D.L.R. (3d) 634; 42 N.R. 312 (C.A.); affd Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; (1982), 137 D.L.R. (3d) 558; 44 N.R. 354; Kahlon v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 386; (1986), 30 D.L.R. (4th) 157; 26 C.R.R. 152 (C.A.); Harelkin v. University of Regina, [1979] 2 S.C.R. 561; (1979), 96 D.L.R. (3d) 14; [1979] 3 W.W.R. 676; 26 N.R. 364; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1987] 1 F.C. 406; (1987), 35 D.L.R. (4th) 693; 27 Admin. L.R. 79; 73 N.R. 241 (C.A.); appeal dismissed [1989] 2 S.C.R. 49; (1989), 61 D.L.R. (4th) 604; 97 N.R. 241; Friends of the Oldman River Society v. Canada (Minister of Transport), [1990] 2 F.C. 18; (1990), 68 D.L.R. (4th) 375; [1991] 1 W.W.R. 352; 76 Alta. L.R. (2d) 289; 5 C.E.L.R. (N.S.) 1; 108 N.R. 241 (C.A.); affd [1992] 1 S.C.R. 3; (1992), 88 D.L.R. (4th) 1; [1992] 2 W.W.R. 193; 84 Alta. L.R. (2d) 129; 3 Admin. L.R. (2d) 1; 7 C.E.L.R. (N.S.) 1; 132 N.R. 321; Landreville v. The Queen, [1973] F.C. 1223; (1973), 41 D.L.R. (3d) 574 (T.D.); Beauchemin v. Employment and Immigration Commission of Canada (1987), 15 F.T.R. 83 (F.C.T.D.); Penner v. Electoral Boundaries Commission (Ont.), [1976] 2 F.C. 614 (T.D.); Haines v. Attorney General of Canada (1979), 32 N.S.R. (2d) 271; 54 A.P.R. 271; 47 C.C.C. (2d) 548 (C.A.); Carrier-Sekani Tribal Council v. Canada (Minister of the Environment), [1992] 3 F.C. 316 (C.A.); Toronto Corporation v. Roman Catholic Separate Schools Trustees, [1926] A.C. 81 (P.C.); Re Hall and City of Toronto et al. (1979), 23 O.R. (2d) 86; 94 D.L.R. (3d) 750; 8 M.P.L.R. 155; 10 R.P.R. 129 (C.A.); Howard Smith Paper Mills Ltd. et al. v. The Queen, [1957] S.C.R. 403; (1957), 8 D.L.R. (2d) 449; 118 C.C.C. 321; 29 C.P.R. 6; 26 C.R. 1; Gardner v. Lucas (1878), 3 App. Cas. 582 (H.L.); De Roussy v. Nesbitt (1920), 53 D.L.R. 514 (Alta. C.A.); Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 256; (1988), 65 O.R. (2d) 638; 52 D.L.R. (4th) 193; 34 C.C.L.T. 237; 47 C.C.L.T. 39; [1988] I.L.R. 1-2370; 9 M.V.R. (2d) 245; 87 N.R. 200; 30 O.A.C. 210; Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; (1975), 66 Page 7 299 D.L.R. (3d) 449; [1976] C.T.C. 1; 75 D.T.C. 5451; 7 N.R. 401; Attorney General of Quebec v. Expropriation Tribunal et al., [1986] 1 S.C.R. 732; (1986), 66 N.R. 380; Venne v. Quebec (Commission de protection du territoire agricole), [1989] 1 S.C.R. 880; (1989), 95 N.R. 335; 24 Q.A.C. 162; 4 R.P.R. (2d) 1; Lorac Transport Ltd. v. Atra (The), [1987] 1 F.C. 108; (1986), 28 D.L.R. (4th) 309; 69 N.R. 183; Northern & Central Gas Corp. v. National Energy Board, [1971] F.C. 149; (1971), 26 D.L.R. (3d) 174; [1971] 4 W.W.R. 413 (T.D.); Minister of National Revenue v. Gustavson Drilling (1964) Ltd., [1972] F.C. 92; [1972] C.T.C. 83; (1972), 72 D.T.C. 6068 (T.D.); Zong v. Commissioner of Penitentiaries, [1976] 1 F.C. 657; (1975), 29 C.C.C. (2d) 114; 10 N.R. 1 (C.A.). Authors Cited Côté, Pierre-André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville, Que.: Yvon Blais, 1991. de Smith, S.A. Judicial Review of Administrative Action, 4th ed. by J.M. Evans. London: Stevens & Sons Ltd., 1980. Evans, J. M. et al. Administrative Law: Cases, Text, and Materials, 3rd ed. Toronto: Emond Montgomery, 1989. Halsbury's Laws of England, Vol. 1(1), 4th ed. reissue. London: Butterworths, 1989. Macdonald, R. A. and M. Paskell-Mede, "Annual Survey of Canadian Law: Administrative Law" (1981), 13 Ottawa L. Rev. 671. Makuch, Stanley M. Canadian Municipal and Planning Law. Toronto: Carswell, 1983. Mercer, Peter P. Annot. (1983), 3 Admin. L.R. 248. Wade, Sir William. Administrative Law, 6th ed. Oxford: Clarendon Press, 1988. APPEAL and CROSS-APPEAL from a Trial Division decision ((1993), 49 C.P.R. (3d) 161; 66 F.T.R. 36 (F.C.T.D.)) allowing application for mandamus to compel the Minister of National Health and Welfare to issue a notice of compliance with respect to a generic drug, and dismissing appellant's application for prohibition. Appeal and Minister's cross-appeal dismissed. Counsel: W. Ian C. Binnie, Q.C., and William H. Richardson for appellants (respondents). Harry B. Radomski and Richard Naiberg for respondent (applicant) Apotex Inc. H. Lorne Murphy, Q.C., and Steve J. Tenai for respondents (respondents) Attorney General of Canada and the Minister of National Health and Welfare. Solicitors: Page 8 300 McCarthy Tétrault, Toronto, for appellants (respondents). Goodman & Goodman, Toronto, for respondent (applicant) Apotex Inc. Deputy Attorney General of Canada for respondents (respondents) Attorney General of Canada and the Minister of National Health and Welfare. The following are the reasons for judgment rendered in English by 1 ROBERTSON J.A.:-- The respondent, Apotex Inc. ("Apotex"), is a "generic" manufacturer and distributor of drugs. That is to say it manufactures and distributes drugs which were researched, developed and first brought to market by "innovator" companies. Apotex sought an order in the nature of mandamus to compel the Minister of National Health and Welfare (the "Minister") to issue a notice of compliance ("NOC") with respect to Apo-Enalapril, its generic version of the drug enalapril. Armed with a NOC, Apotex would have been in a position to market Apo-Enalapril in direct competition with "VASOTEC", the trade-mark under which the appellants, Merck & Co., Inc. and Merck Frosst Canada Inc. ("Merck"), manufacture and sell enalapril. 2 Merck, an "innovator" drug manufacturer, is the leading pharmaceutical company in Canada in terms of sales. Its drug "VASOTEC" is used for the treatment of congestive heart failure and hypertension and is the largest selling pharmaceutical in Canada, contributing approximately $140 million toward Merck's annual revenue of $400 million. It is thus not surprising that Merck sought an order prohibiting the Minister from issuing the NOC to Apotex. The mandamus and prohibition applications were consolidated by order of the Court and heard together. Apotex was the victor and hence the matter is before us for further consideration. 3 This is not the first time the competing economic interests of Canadian generic and innovator drug manufacturers have collided: e.g., Pfizer Canada Inc. v. Minister of National Health & Welfare et al. (1986), 12 C.P.R. (3d) 438 (F.C.A.); leave to appeal to Supreme Court refused (1987), 14 C.P.R. (3d) 447; Glaxo Canada Inc. v. Canada (Minister of National Health and Welfare), [1988] 1 F.C. 422 (T.D.), additional reasons at (1988), 19 C.I.P.R. 120 (F.C.T.D.); affd (1990), 68 D.L.R. (4th) 761 (F.C.A.); and Apotex Inc. v. Attorney General of Canada et al. (1986), 11 C.P.R. (3d) 43 (F.C.T.D.); application for reconsideration denied (1986), 11 C.P.R. (3d) 62; affirmed (1986), 12 C.P.R. (3d) 95 (F.C.A.); leave to appeal to Supreme Court of Canada refused (1987), 14 C.P.R. (3d) 447. 4 This appeal, however, represents more than a private law skirmish about the economic and health interests of Canadians. At least one aspect of that issue was supposedly resolved by Parliament when it enacted the Patent Act Amendment Act, 1992, S.C. 1993, c. 2, amending [Patent Act] R.S.C., 1985, c. P-4, ("Bill C-91") with the intent of thwarting the possible appropriation by generic drug companies, such as Apotex, of the research and development initiatives of innovators, Page 9 301 such as Merck. The principal issue we must address here is the effect of Bill C-91 on what Apotex argues is a vested right to the NOC. The enactment of Bill C-91 between the date that Apotex's mandamus application was filed and the date it was heard, together with the Minister's continuing failure to issue the Apo-Enalapril NOC, were the legal catalysts which propelled both Apotex and Merck into the courtrooms of the Trial and Appeal Divisions of this Court. 5 Aside from reviewing the traditional requirements for mandamus, this Court must determine whether the Minister could withhold the NOC on the basis of the then unproclaimed provisions of Bill C-91. Alternatively, it is asked whether the delay occasioned by the need to obtain legal advice with respect to the legality of issuing the NOC prevented Apotex from acquiring a vested right to the NOC. Now that Bill C-91 is law, Merck argues that Apotex must comply with its provisions which, if applicable, clearly deny Apotex that which it seeks. Moreover, Merck submits that this Court has the discretion to refuse mandamus where the effect would be to "frustrate the will of Parliament." That argument essentially invites this Court to consider what has been labelled the "balance of convenience" test in evaluating Apotex's mandamus application. These issues, among others, may only be addressed against the legislative framework in place at the time Apotex submitted its NOC application and that currently in effect. LEGISLATIVE FRAMEWORK 6 In part, this appeal hinges on the scope of ministerial discretion as set out in the Food and Drugs Act, R.S.C., 1985, c. F-27, (the "FDA") and the regulations enacted pursuant to that Act (the "FDA Regulations") [Food and Drug Regulations, C.R.C., c. 870]. The responsibility for administering the FDA rests principally with the Health Protection Branch of the Department of National Health and Welfare (the "HPB"). 7 Under the FDA, the Minister must ensure that "new drugs" meet health and safety requirements. A "new drug" is defined in section C.08.001 of the FDA Regulations as a drug which contains a substance which has not been sold in Canada for a sufficient time and in sufficient quantity to establish its safety and effectiveness. 8 A "new drug" must undergo rigorous testing before it may be sold. The manufacturer of the drug must file a New Drug Submission ("NDS") with the HPB setting out, inter alia, the drug's qualities, ingredients and methods of manufacture and purification. The NDS also includes the results of the manufacturer's clinical studies supporting the drug's safety and effectiveness. All aspects of the NDS are examined by multidisciplinary teams of the Drugs Directorate of the HPB. A NOC will only issue if the drug is found to be both effective and safe for human use. The relevant provisions [C.08.002 (as am. by SOR/85-143, s. 1), C.08.004 (as am. idem, s. 3, SOR/88-257, s. 1)] of the FDA Regulations state: C.08.002. (1) No person shall sell or advertise for sale a new drug unless Page 10 302 (a) the manufacturer of the new drug has filed with the Minister, in duplicate, a new drug submission relating to that new drug, having a content satisfactory to the Minister; (b) the Minister has issued a notice of compliance to the manufacturer of the new drug in respect of that new drug submission pursuant to section C.08.004; (c) that notice of compliance is not suspended pursuant to section C.08.006 . . . . . . C.08.004. (1) The Minister shall, after completing an examination of a new drug submission or supplement thereto, (a) if that submission or supplement complies with the requirements of section C.08.002 or C.08.003, as the case may be, and section C.08.005.1, issue a notice of compliance . . . . [Emphasis added.] 9 Prior to the proclamation of Bill C-91, a generic drug company could obtain a compulsory licence from the Commissioner of Patents authorizing it to advertise, manufacture and sell any drug in respect of which a NOC had been issued. Although the generic drug company was required to pay royalties to the drug's innovator, it could sell the drug notwithstanding the innovator's patent rights. This arrangement was governed by subsection 39(4) of the Patent Act, R.S.C., 1985, c. P-4, (the "Patent Act"): 39. . . . (4) Where, in the case of any patent for an invention intended or capable of being used for medicine or for the preparation or production of medicine, an application is made by any person for a licence to do one or more of the following things as specified in the application, namely, (a) where the invention is a process, to use the invention for the preparation or production of medicine, import any medicine in the preparation or production of which the invention has been used or sell any medicine in the preparation or production of which the invention has been used, or (b) where the invention is other than a process, to import, make, use or sell the invention for medicine or for the preparation or production of medicine, Page 11 303 the Commissioner shall grant to the applicant a licence to do the things specified in the application except such, if any, of those things in respect of which he sees good reason not to grant a licence. 10 Subsection 39(14) of the Patent Act required the Commissioner of Patents to notify the Department of National Health and Welfare of all compulsory licence applications. To this extent, there was a "linkage" between NOCs and patent rights. 11 Bill C-91 was drafted in order to protect innovator pharmaceutical companies' distribution and sales rights to patented drugs and represents a reversal of government policy adopted by Parliament in 1923: see The Patent Act, S.C. 1923, c. 23, section 17; but compare Order in Council respecting patents of invention held by alien enemies [Orders and Regulations respecting Patents of Invention made under The War Measures Act, 1914], P.C. 1914-2436, The Canada Gazette, October 10, 1914, enacted pursuant to the War Measures Act, 1914 (The), S.C. 1914, (2nd Sess.), c. 2. Bill C-91 was introduced in the House of Commons on June 23, 1992 and passed its third reading on December 10, 1992. It was given Royal Assent on February 4, 1993. 1 12 The immediate effects of Bill C-91 are well known. Section 3 of the Bill repealed the compulsory licensing provisions of the Patent Act, while subsection 12(1) extinguished all compulsory licences issued on or after December 20, 1991, as follows: 12. (1) Every licence granted under section 39 of the former Act on or after December 20, 1991 shall cease to have effect on the expiration of the day preceding the commencement day, and all rights or privileges acquired or accrued under that licence or under the former Act in relation to that licence shall thereupon be extinguished. 13 Section 4 of the Bill adds section 55.2 to the Patent Act. Subsection 55.2(4) authorizes the Governor in Council to make regulations concerning, inter alia, the issuance of NOCs, as follows: 55.2 . . . (4) The Governor in Council may make such regulations as the Governor in Council considers necessary for preventing the infringement of a patent by any person who makes, constructs, uses or sells a patented invention in accordance with subsection (1) or (2) including, without limiting the generality of the foregoing, regulations (a) respecting the conditions that must be fulfilled before a notice, certificate, Page 12 304 permit or other document concerning any product to which a patent may relate may be issued to a patentee or other person under any Act of Parliament that regulates the manufacture, construction, use or sale of that product, in addition to any conditions provided for by or under that Act; (b) respecting the earliest date on which a notice, certificate, permit or other document referred to in paragraph (a) that is issued or to be issued to a person other than the patentee may take effect and respecting the manner in which that date is to be determined; (c) governing the resolution of disputes between a patentee or former patentee and any person who applies for a notice, certificate, permit or other document referred to in paragraph (a) as to the date on which that notice, certificate, permit or other document may be issued or take effect; (d) conferring rights of action in any court of competent jurisdiction with respect to any disputes referred to in paragraph (c) and respecting the remedies that may be sought in the court, the procedure of the court in the matter and the decisions and orders it may make; and (e) generally governing the issue of a notice, certificate, permit or other document referred to in paragraph (a) in circumstances where the issue of that notice, certificate, permit or other document might result directly or indirectly in the infringement of a patent. 14 On February 12, 1993, the Governor in Council fixed February 15 as the date Bill C-91, with the exception of section 55.2, would come into force. On March 12, 1993, that section and the Patented Medicines (Notice of Compliance) Regulations, SOR/93-133, (the "Patented Medicines Regulations") were brought into effect. 15 The Patented Medicines Regulations prohibit the issuance of NOCs in respect of "patent-linked" drugs. A "patent-linked" drug is one in respect of which both a NOC and an unexpired patent have been issued. The patent may relate to either the medicine itself or the method of using the drug to treat an illness. 16 Subsections 5(1) and (2) of the Patented Medicines Regulations refer to NDSs filed before March 12, 1993 (the date the Regulations were brought into effect) and read as follows: 5. (1) Where a person files or, before the coming into force of these Regulations, has filed a submission for a notice of compliance in respect of a drug and wishes to compare that drug with, or make reference to, a drug that has been marketed in Canada pursuant to a notice of compliance issued to a first person in respect of which a patent list has been submitted, the person shall, in the submission, with respect to each patent on the patent list, Page 13 305 (a) state that the person accepts that the notice of compliance will not issue until the patent expires; or (b) allege that (i) the statement made by the first person pursuant to paragraph 4(2)(b) is false, (ii) the patent has expired, (iii) the patent is not valid, or (iv) no claim for the medicine itself and no claim for the use of the medicine would be infringed by the making, constructing, using or selling by that person of the drug for which the submission for the notice of compliance is filed. (2) Where, after a second person files a submission for a notice of compliance, but before the notice of compliance is issued, a patent list is submitted or amended in respect of a patent pursuant to subsection 4(5), the second person shall amend the submission to include, in respect of that patent, the statement or allegation that is required by subsection (1). Subsection 7(1) of the Patented Medicines Regulations prohibits the Minister from issuing a NOC to generic drug companies who have not complied with section 5 of the Regulations. 17 One of the principal issues on appeal is whether the above provisions apply to Apotex's NDS. In this regard, Merck notes that Parliament specifically introduced a special paramountcy rule in subsection 55.2(5) of the Patent Act to explicitly reinforce the objective of Bill C-91: 55.2 . . . (5) In the event of any inconsistency or conflict between (a) this section or any regulations made under this section, and (b) any Act of Parliament or any regulations made thereunder, this section or the regulations made under this section shall prevail to the extent of the inconsistency or conflict. [Emphasis added.] Page 14 306 FACTS 18 There are two factual matters in dispute. In addition, one factual matter-the precise reason or reasons underlying the Minister's failure to issue the NOC-has apparently eluded the parties' consideration. The import of this gap will be evaluated following an outline of the commonly-held facts giving rise to this appeal. (a) Common Ground 19 On July 3, 1989, the Minister delegated the authority to sign NOCs to persons occupying the positions of Assistant Deputy Minister ("ADM") and Director General of the Drugs Directorate. Throughout the relevant period in this appeal, Kent Foster was the ADM and the only person to whom the Minister's authority to sign NOCs had devolved. 20 Apotex submitted a NDS in respect of Apo-Enalapril on February 15, 1990. 2 Eight months later, on October 16, 1990, Merck was granted a seventeen-year patent in respect of enalapril to expire on October 16, 2007. 21 Bill C-91 received third reading on December 10, 1992. On December 22, thirty-four months after filing its NDS, Apotex initiated an application for judicial review against the Minister in which it sought an order in the nature of mandamus in respect of the Apo-Enalapril NOC. 22 Apotex's NDS was incomplete when it filed its mandamus application. The HPB had notified Apotex in writing of the deficiencies in the bio-equivalence portion of the Apo-Enalapril NDS on July 20, 1992 and did not receive all of the required information from Apotex until January 11, 1993. Additional information concerning the chemistry and manufacturing portion of the NDS was also requested and received from Apotex. Finally, on February 2, 1993, the HPB requested clean product monographs, which were provided on February 3, 1993. As of that date Apotex's NDS satisfied both the clinical and the chemistry and manufacturing requirements prescribed in the FDA Regulations. In other words, by February 3, 1993, Apo-Enalapril met all of the scientific safety and efficacy conditions required for a NOC to issue. 23 Two events relevant to this appeal transpired on February 4, 1993: Bill C-91 received Royal Assent and the Apo-Enalapril NOC was placed on Foster's desk for signature. Foster admitted that the NDS had "cleared the scientific and regulatory review process" and that he and the ADM of National Pharmaceutical Strategy were of the view that the NOC ought to issue. However, Foster had been advised by the Minister's Chief of Staff on January 21, 1993 that he should keep the Minister apprised of any "patent-linked" NDSs in view of the impending passage of Bill C-91. In a note accompanying the Apo-Enalapril NOC, the ADM of National Pharmaceutical Strategy intimated that the Apo-Enalapril NOC was one in respect of which Foster's signing authority had been effectively fettered. 24 Foster did not see the NOC-related documents until approximately 6:00 p.m. on February 4. Page 15 307 On the next day, because of the fetter placed on his authority and aware of Apotex's court application, he contacted his Deputy Minister. Together they decided to seek legal advice regarding the authority of the Minister or Foster to issue the Apo-Enalapril NOC in light of the passage of Bill C-91. Later that day, the president of Merck telephoned Foster, indicating that Foster was obligated to refrain from issuing the NOC. On February 8, 1993, the Department of National Health and Welfare sought and obtained legal opinions from outside counsel and the Department of Justice regarding the Minister's authority to issue the NOC. The substance of these opinions has not been released on the ground of privilege. 3 25 Between February 12 and February 23, 1993, Merck forwarded eight legal opinions obtained from private law firms to the Minister. Those opinions supported Merck's position that it would be inappropriate and even unlawful for the Minister or Foster to issue a NOC in respect of Apo-Enalapril. To make sense of this flurry of unsolicited opinions, Foster sought further legal advice on February 24, 1993. He stated: My concern was that whatever action I took or did not take might have the Minister, by virtue of my delegated authority, contravening the law. I didn't know the answer to that and I wanted the answer to that. 26 To dispel any doubt harboured by the Minister and his staff, Merck submitted additional legal opinions which substantively reiterated those previously sent. Between February 12 and March 5, 1993, Merck provided the Government with a total of seventeen legal opinions. All were placed before the Trial Judge and this Court. None support Apotex's position that the Minister did not have the right to consider impending government policy in denying Apotex its NOC. 27 On February 22, 1993, Merck commenced an application for judicial review seeking, inter alia, a prohibition order preventing the Minister from issuing the Apo-Enalapril NOC. Apotex brought a motion for judgment directing the Minister to issue this NOC on March 4, 1993. On March 9, 1993, the Minister sought and received an adjournment of the Apotex application until March 16, 1993. 4 On March 12, 1993, subsection 55.2(4) of the Patent Act and the Patented Medicines Regulations came into effect. 28 On March 18, 1993, the applications of Merck and Apotex were consolidated by order of a Trial Judge. They were heard on June 21, 1993. On July 16, 1993, Dubé J. allowed Apotex's application for mandamus and denied Merck's application for prohibition [Apotex Inc. v. Canada (Attorney-General) (1993), 49 C.P.R. (3d) 161]. (b) Disputed Facts 29 In oral argument, Merck sought to establish that the Minister was still investigating allegations that Apo-Enalapril was unsafe after February 4, 1993. The HPB has apparently determined these allegations to be unfounded and, in any event, they are contrary to the Minister's position at trial that Apo-Enalapril had met all the criteria and conditions prescribed by the existing FDA Page 16 308 Regulations by February 3, 1993 (Apotex, supra, at page 176). 30 By counter-offensive, Apotex suggested that the Minister did not fairly consider the NDS. It alleged that other "patent-linked" generic NDSs were being approved while Apotex's NOC was being delayed. (From the appeal record, I note that Merck had accused the Minister of "accelerating" the processing of Apotex's NDS.) The Trial Judge acknowledged the issue but did not address it, either because it was unnecessary or because it was not deserving of attention (at page 170). Apotex did not launch a cross-appeal with respect to this issue. (c) The Factual Lacuna 31 Only the Minister possessed the discretionary power to issue a NOC to Apotex once the NDS review was completed. Neither he nor Foster signed the NOC. However, the Minister's reasons for failing to issue the NOC are unclear. 32 Merck first maintains that there is no evidence the NOC had been formally presented to the Minister for his consideration, a fact acknowledged by the Trial Judge (appellants' memorandum of fact and law, paragraph 42, Apotex, supra, at pages 167-168). It also seeks to establish that the Minister was entitled to have regard to pending legislative policy in issuing the NOC (appellants' memorandum of fact and law, paragraph 67). The former submission implies that the Minister had not yet had the opportunity to review Apotex's application. The inference to be drawn from the latter is that, not only did the Minister review the NDS, but his lawful consideration of pending government legislation was one reason why the NOC did not issue. There is no evidence that the Minister received, much less acted upon, the legal advice sought on February 24, 1993. 33 Regrettably, no one has sought to elicit from the Minister the very reason or reasons underlying his failure to authorize the NOC prior to March 12, 1993. 5 Upon reflection, we are left with the following possibilities (there are others): Was the Minister still in search of the "definitive" legal opinion? Did he not have the opportunity to review the NDS? Or did the Minister conclude that as a matter of law the NOC could not issue? Since Apotex has neither impeached the motives of the Minister nor argued unreasonable delay, I am left with the legal arguments pursued by the parties. DECISION UNDER APPEAL 34 At trial, Dubé J. perceived the central issue to be whether the Minister, prior to March 12, 1993, possessed the discretionary power to decline to issue the NOC to Apotex on the basis of anticipated changes to the Patent Act. He concluded (at page 177): In my view, there can be no doubt that the FDR did entitle the Minister to exercise his discretion in the Apotex NDS approval process. However, this discretion, like all discretionary authority, was not unfettered. The scope of the Minister's discretion was limited strictly to a consideration of factors relevant to Page 17 309 the purposes of the FDR as they relate to the process for approval of new drugs to be marketed in Canada. . . . It was limited to a decision as to whether the HPB review of the Apotex NDS established that Apo-enalapril was safe and effective. Once that question had been answered in the affirmative, as it was in this case, any other extraneous consideration was irrelevant to the issuance of a NOC under the FDR. The Minister was not entitled to refuse to issue a NOC to Apotex on the basis of anticipated changes to the patent statute and regulations thereunder, an area within the authority of his colleague, the Minister of Consumer and Corporate Affairs. 35 The learned Judge found support for his position in three decisions of the Trial Division of this Court. First, he applied the reasoning of MacKay J. in Apotex Inc. v. Canada (Attorney General) et al. (1993), 59 F.T.R. 85, where it was held (at pages 108-109): [T]he words "having a content satisfactory to the Minister" qualify the words "new drug submission" so that in every case the content of a submission is a matter within the discretion of the Minister and those acting on his or her behalf to determine. . . . [T]he Regulations vest complete and exclusive discretion in the respondent Minister and the Director of HPB to determine the requirements of a new drug submission in terms of the information or evidence to be provided by the manufacturer. [Emphasis not in original.] 36 The second decision is Glaxo Canada Inc. v. Canada (Minister of National Health and Welfare), supra, where Rouleau J. concluded (at page 426): The central purpose of the Regulations is to ensure that any new drug meets rigorous safety profile standards in order to protect the Canadian public. If, upon review, the Minister finds the new drug submission to be satisfactory, he is compelled to issue a notice of compliance . . . . 37 Finally, Dubé J. turned to the decision of Muldoon J. in C.E. Jamieson & Co. (Dominion) v. Canada (Attorney General), [1988] 1 F.C. 590 (T.D.), in which the Trial Judge held (at page 651): [W]hatever discretion is accorded by these clear and detailed Regulations is quite restricted . . . . Under regulation C.08.004 the Minister is bound either to issue a notice of compliance or to notify the manufacturer why the submission . . . does Page 18 310 not comply . . . . The Minister is subject to the Court's supervising power to order mandamus in that regard . . . . These delegated powers do not permit the Minister or the Director to do as they please: they have no unfettered discretions. 38 Dubé J. had little difficulty in deciding that the Minister did not possess the broad discretion to justify his refusal to issue the NOC. It remained to be determined whether the Minister and his delegate, Foster, were entitled to seek legal advice and otherwise delay issuing the NOC. Dubé J. observed that the Minister did not know, either when Bill C-91 was passed or when it was proclaimed, that the Patented Medicines Regulations would come into force on March 12, 1993. In other words, the delay in determining whether the NOC could issue may have been considerably protracted. Acceding to Foster's pragmatic observation that "either the law is in effect or it isn't" the Trial Judge concluded "that the Minister's delay in issuing the Apotex NOC was not warranted" (at page 181). 39 Dubé J. went on to reject the argument that issuing mandamus in cases where new regulatory regimes are clearly pending would "frustrate the will of Parliament." He cautioned that the line of municipal law cases commencing with the Supreme Court's decision in Ottawa, City of v. Boyd Builders Ltd., [1965] S.C.R. 408 should not be "transported facilely to an entirely unrelated legal context" (at page 181). 40 Finally, the learned Trial Judge rejected the argument that Apotex's claim for mandamus was premature because its NDS was incomplete when the application was filed. He reasoned (at page 182): Before closing, I take the opportunity to dispose of a "preliminary" matter raised by Merck, that Apotex' December 22, 1992 originating notice of motion was premature because, as of that date, the Apo-enalapril NDS was incomplete. According to the terms of the notice of motion, Apotex sought an order directing the Minister to disclose the status of a number of NDS filed by Apotex, including that for Apo-enalapril; to complete the reviews of these submissions, should they not have been completed; and to issue NOCs "if the results of the reviews are satisfactory". Thus, Apotex was not requesting relief divorced from the normal requirements of the FDR, or "jumping the gun". And, as of February 3, 1993, long before this matter came on for hearing, the results of the Apo-enalapril NDS has been recommended for issuance of a NOC. The argument based on prematurity must therefore fail. 41 For the above reasons, the application for mandamus was allowed and the application for prohibition denied. ISSUES RAISED ON APPEAL 42 An appeal provides both parties with the opportunity to reflect on, refine and reformulate Page 19 311 substantive arguments which may or may not have been pursued below. The following issues were identified by Merck in its memorandum of fact and law and addressed on appeal: (1) Does mandamus lie against the Minister on the facts of this case? (2) Was the Minister entitled to seek advice after February 4, 1993 about the legality of what Apotex was asking him to do, plus any other relevant information that may have occurred to him? (3) In the exercise of his statutory power under the Food and Drug Regulations, was the Minister entitled to have regard to the provisions of Bill C-91 after they were enacted but before they were proclaimed in effect? (4) Was the Minister acting unlawfully when he failed to reach a decision on the NOC application by March 12, 1993? (5) If so, was the effect to give Apotex a "vested right" to the issuance of an NOC prior to March 12, 1993? (6) If Apotex had acquired a "vested" right prior to March 12, 1993, was such right nevertheless divested by the Patented Medicines (Notice of Compliance) Regulations? (7) Did the rights and remedies created by Bill C -91 and the Patented Medicines (Notice of Compliance) Regulations oust the jurisdiction of this Court from and after March 12, 1993 to grant judicial review in the circumstances of this case to compel issuance of the notice of compliance? (8) Do the principles set out in Ottawa, City of v. Boyd Builders Ltd., [1965] S.C.R. 408 apply to the exercise of the Court's discretion in mandamus cases generally, or are they confined to building permit cases? (9) If Apotex is otherwise entitled to the issuance of mandamus, is this a case in which the Court ought to have exercised its discretion (which Dubé J. believed he did not possess) against Apotex in light of the public policy enunciated in Bill C-91 and the Regulations? (10) Does prohibition lie against the Minister on the facts of this case? 43 By cross-appeal, the Minister argues that the Trial Judge erred in finding the delay in issuing the NOC to be unwarranted. Like Merck he remains convinced that as a matter of law the NOC cannot issue. ANALYSIS 44 Most issues raised by counsel concern the availability of orders in the nature of mandamus. I propose to outline in general terms the principles governing such orders before clarifying those issues central to this appeal. Page 20 312 (1) Mandamus-The Principles 45 Several principal requirements must be satisfied before mandamus will issue. The following general framework finds support in the extant jurisprudence of this Court (see generally O'Grady v. Whyte, [1983] 1 F.C. 719 (C.A.), at pages 722-723, citing Karavos v. Toronto & Gillies, [1948] 3 D.L.R. 294 (Ont. C.A.), at page 297; and Mensinger v. Canada (Minister of Employment and Immigration), [1987] 1 F.C. 59 (T.D.), at page 66. 1. There must be a public legal duty to act: Minister of Employment and Immigration v. Hudnik, [1980] 1 F.C. 180 (C.A.); Jefford v. Canada, [1988] 2 F.C. 189 (C.A.); Winegarden v. Public Service Commission and Canada (Minister of Transport) (1986), 5 F.T.R. 317 (F.C.T.D.); Rossi v. The Queen, [1974] 1 F.C. 531 (T.D.); Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), [1989] 3 F.C. 309 (T.D.); affd [1990] 2 W.W.R. 69 (F.C.A.); Bedard v. Correctional Service of Canada, [1984] 1 F.C. 193 (T.D.); Carota v. Jamieson, [1979] 1 F.C. 735 (T.D.); affd [1980] 1 F.C. 790 (C.A.); and Nguyen v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 232 (C.A.). 2. The duty must be owed to the applicant: 6 Rothmans of Pall Mall Canada v. Minister of National Revenue (No. 1), [1976] 2 F.C. 500 (C.A.); Distribution Canada Inc. v. M.N.R., [1991] 1 F.C. 716 (T.D.); affd [1993] 2 F.C. 26 (C.A.); Secunda Marine Services Ltd. v. Canada (Minister of Supply & Services) (1989), 38 Admin. L.R. 287 (F.C.T.D.); and Szoboszloi v. Chief Returning Officer of Canada, [1972] F.C. 1020 (T.D.); see also Jefford v. Canada, supra. 3. There is a clear right to performance of that duty, in particular: (a) the applicant has satisfied all conditions precedent giving rise to the duty; O'Grady v. Whyte, supra; Hutchins v. Canada (National Parole Board), [1993] 3 F.C. 505 (C.A.); and see Nguyen v. Canada (Minister of Employment and Immigration), supra; (b) there was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay; see O'Grady v. Whyte, supra, citing Karavos v. Toronto & Gillies, supra; Bhatnager v. Minister of Employment and Immigration, [1985] 2 F.C. 315 (T.D.); and Canadian Wildlife Federation Inc. v. Canada (Minister of the Environment), supra. 4. Where the duty sought to be enforced is discretionary, the following rules apply: Page 21 313 (a) in exercising a discretion, the decision-maker must not act in a manner which can be characterized as "unfair", "oppressive" or demonstrate "flagrant impropriety" or "bad faith"; (b) mandamus is unavailable if the decision-maker's discretion is characterized as being "unqualified", "absolute", "permissive" or "unfettered"; (c) in the exercise of a "fettered" discretion, the decision-maker must act upon "relevant", as opposed to "irrelevant", considerations; (d) mandamus is unavailable to compel the exercise of a "fettered discretion" in a particular way; and (e) mandamus is only available when the decision-maker's discretion is "spent"; i.e., the applicant has a vested right to the performance of the duty. See Restrictive Trade Practices Commission v. Director of Investigation and Research, Combines Investigation Act, [1983] 2 F.C. 222 (C.A); revg [1983] 1 F.C. 520 (T.D.); Carota v. Jamieson, supra; Apotex Inc. v. Canada (Attorney General) et al., supra; Maple Lodge Farms Ltd. v. Government of Canada, [1980] 2 F.C. 458 (T.D.); affd [1981] 1 F.C. 500 (C.A.); affd [1982] 2 S.C.R. 2; Jefford v. Canada, supra; Merck & Co. Inc. v. Sherman & Ulster Ltd., Attorney-General of Canada, Intervenant (1971), 65 C.P.R. 1 (Ex. Ct.); appeal dismissed [1972] S.C.R. vi; Distribution Canada Inc. v. M.N.R., supra; and Kahlon v. Canada (Minister of Employment and Immigration), [1986] 3 F.C. 386 (C.A.). 5. No other adequate remedy is available to the applicant: Carota v. Jamieson, supra; Maple Lodge Farms Ltd. v. Government of Canada, supra; Jefford v. Canada, supra; Harelkin v. University of Regina, [1979] 2 S.C.R. 561; and see Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1987] 1 F.C. 406 (C.A.); appeal dismissed [1989] 2 S.C.R. 49. 6. The order sought will be of some practical value or effect: Friends of the Oldman River Society v. Canada (Minister of Transport), [1990] 2 F.C. 18 (C.A.), per Stone J.A., at pages 48-52; affd [1992] 1 S.C.R. 3, per La Forest J., at pages 76-80; Landreville v. The Queen, [1973] F.C. 1223 (T.D.); and Beauchemin v. Employment and Immigration Commission of Canada (1987), 15 F.T.R. 83 (F.C.T.D.). 7. The Court in the exercise of its discretion finds no equitable bar to the relief sought: Penner v. Electoral Boundaries Commission (Ont.), [1976] 2 F.C. 614 (T.D.); Friends of the Oldman River Society v. Canada (Minister of Transport), supra. 8. On a "balance of convenience" an order in the nature of mandamus should (or should not) issue. Page 22 314 46 In this appeal, it is understood that the Minister had a duty to act which was owed to Apotex and not the Crown. Merck has not sought to show that Apotex is disentitled in equity to the relief sought. Nor has it sought to establish that an order of mandamus would be ineffectual. On the other hand, it argues that Apotex's application was premature to the extent that not all conditions precedent had been satisfied at the time the application was initiated. As well, it contends that an alternative and adequate remedy is available to Apotex. Aside from the balance of convenience issue noted earlier, the remaining issues central to this appeal may be stated as follows: Did Apotex have a vested right to the NOC as of March 12, 1993? If Apotex did have such a right, was that right divested by the Patented Medicines Regulations? Does the paramountcy provision in Bill C-91 oust the jurisdiction of this Court to grant the order sought by Apotex? (2) An Alternative and Adequate Remedy 47 Bill C-91 authorizes Apotex to challenge the validity of Merck's patent. If successful, not only would Apotex be entitled to the NOC but Merck would be liable in damages for wrongfully delaying its issue (see section 6, Patented Medicines Regulations). Accordingly, Merck argues that compliance with the existing legislation is of itself an adequate remedy. This reasoning, of course, merely begs the question. I would note that Merck has not sought to establish that an order of mandamus would itself be ineffectual. Conversely, Apotex has not sought to show that Merck has a more adequate remedy-an action for patent infringement-as an alternative to its application for prohibition. (3) Prematurity 48 Merck takes the position that the Minister owed no duty to Apotex at the time it commenced its judicial review application on December 22, 1992 or on the hearing date. This submission is certainly correct in part. The Minister owed no duty to Apotex on December 22; the HPB's review of Apotex's NDS was ongoing at that time. Merck maintains that filing an application before a duty is owed constitutes a bar to mandamus. It relies on Karavos v. Toronto & Gillies, supra, a decision of the Ontario Court of Appeal which has been cited with approval by this Court in O'Grady v. Whyte, supra, per Urie J.A., at page 722. In Karavos, Laidlaw J.A. stated (at page 297): I do not attempt an exhaustive summary of the principles upon which the Court proceeds on an application for mandamus, but I shall briefly state certain of them bearing particularly on the case presently under consideration. Before the remedy can be given, the applicant for it must show (1) "a clear, legal right to have the thing sought by it done, and done in the manner and by the person sought to be coerced": High op. cit., p. 13, art. 9; p. 15, art 10. (2) "The duty whose performance it is sought to coerce by mandamus must be actually due and incumbent upon the officer at the time of seeking the relief, and the writ will not lie to compel the doing of an act which he is not yet under obligation to perform"; ibid., supra, p. 44, art. 36. (3) That duty must be purely ministerial in Page 23 315 nature, "plainly incumbent upon an officer by operation of law or by virtue of his office, and concerning which he possesses no discretionary powers": ibid., supra, p. 92, art. 80. (4) There must be a demand and refusal to perform the act which it is sought to coerce by legal remedy: ibid., supra, p. 18, art. 13. [Emphasis added.] 49 Merck seeks to extract from the phrase "at the time of seeking the relief" a rule of law to the effect that mandamus must be denied if a duty to act is not owing at the time the application for mandamus is filed. In my view, such a rule would be extremely short-sighted and finds no support in the facts of either Karavos or O'Grady. 50 In Karavos, the applicant sought an order of mandamus compelling the issue of a building permit even though he had not submitted his permit application as of the hearing date. Similarly in O'Grady, the applicant failed to submit an application for "landing" as of the date when an immigration officer was required to decide upon his sponsorship application. In both cases, it was held that the absence of the required application was fatal to the granting of mandamus. 51 The legal principle derived from these two cases is simply stated. An order of mandamus will not lie to compel an officer to act in a specified manner if he or she is not under an obligation to act as of the hearing date. The question remains whether the rule retains its validity if applied as of the date that the application for mandamus was filed. In my opinion, it cannot. 52 In its application Apotex requested the Court to issue two directives. First, it asked that the Minister process the NDS which had been submitted some thirty-four months prior to the mandamus application. Second, it sought an order directing the issuance of the NOC once the NDS review process was complete. 53 Whether or not the application for mandamus had the effect of propelling the HPB into action is a matter for speculation. We do know that safety and efficacy requirements for the Apo-Enalapril NOC had been met by February 3. We also know that an application to strike the mandamus application was made on January 27, 1993 by the Minister and the Attorney General of Canada. That application was apparently dismissed from the Bench for reasons which are not apparent on the face of the record (see Appeal Book, Vol. I, Tabs 4 & 5). 54 As a general proposition, it is not difficult to accept a rule which seeks to eliminate premature applications for mandamus. It is certainly open to a respondent to pursue dismissal of an application where the duty to perform has yet to arise. However, unless compelling reasons are offered, an application for an order in the nature of mandamus should not be defeated on the ground that it was initiated prematurely. Provided that the conditions precedent to the exercise of the duty have been satisfied at the time of the hearing, the application should be assessed on its merits. Those who unnecessarily complicate the proceedings may expose themselves to costs even if successful. For the foregoing reasons this submission must fail. (4) Discretion Spent-Vested Rights Page 24 316 55 Simply stated, this Court must decide whether Apotex is entitled to the advantages of the "old" law or bound to accept the disadvantages arising from the "new". The traditional approach to this issue focusses on whether the decision-maker reached a decision before the intervening legislation came into effect. In other words, did Apotex acquire a vested right to the NOC by March 12, 1993? 56 If a decision-maker has an unfettered discretion which he or she has not exercised as of the date a new law takes effect, then the applicant cannot successfully assert either a vested right or even the right to have the decision-maker render a decision. This is the ratio of the Judicial Committee of the Privy Council in Director of Public Works v. Ho Po Sang, [1961] A.C. 901. In that case, the Court distinguished a "vested right" from a "mere hope or expectation" and determined that an applicant for a rebuilding permit had only a mere hope or expectation that the permit would be granted at the time that repealing legislation came into force. Ho Po Sang has been applied by the Exchequer Court in Merck & Co. Inc. v. Sherman & Ulster Ltd., Attorney-General of Canada, Intervenant, supra. These cases provide the necessary background for an appreciation of the principles underlying the "vested rights" issue. 57 In Ho Po Sang, the lessee of Crown lands in Hong Kong was entitled by Ordinance to vacant possession of buildings occupied by sub-lessees on the condition that he erect new buildings and receive approval from the Director of Public Works. The legislation also exempted the lessee from compensating the sub- lessees with respect to termination of their tenancies. On July 20, 1956, the Director purported to give the lessee the required certificate. Upon receipt of their notices to quit the premises, the sub-lessees launched an appeal to the Governor in Council. The lessee immediately cross-appealed. On April 9, 1957, after the appeal had been initiated, the relevant provisions of the Ordinance were repealed to provide tenants with the right to compensation. As of that date the Governor in Council had not reached a decision. 58 The issue on appeal was whether on April 9, 1957, the lessee possessed "rights" under the Ordinance which remained unaffected by the repeal. The Privy Council based its conclusion on the "absolute" discretion which the Ordinance accorded the Governor in Council: "[The lessee] had no more than a hope that the Governor in Council would give a favourable decision" (at pages 920-921). The lessee's argument that he had an accrued right unaffected by the repeal to have the matter considered by the Governor in Council was rejected on the same grounds. 59 The decision of Thurlow J. (as he then was) in Merck & Co. Inc. v. Sherman & Ulster Ltd., Attorney-General of Canada, Intervenant, supra, provides guidance in determining whether Apotex had a vested right to the NOC rather than a mere hope or expectation. The issue in that case was whether the Commissioner of Patents erred in fixing the royalty payable to Merck by Sherman under a compulsory licence. Sherman had submitted its patent specifications and the Commissioner had assessed the royalty on the basis of subsection 41(3) of the Patent Act, R.S.C. 1952, c. 203. That subsection was subsequently repealed and replaced with subsection 41(4) (S.C. 1968-69, c. 49, s. 1). The Commissioner did not hear the parties' oral arguments or receive their written submissions until after these amendments came into effect. The issue before the Trial Judge was Page 25 317 straightforward: Which statutory provision was applicable when fixing the royalty-the old or the new? After a careful analysis of competing provisions of the Interpretation Act, R.S.C. 1952, c. 158, Thurlow J. concluded that the "new" subsection 41(4) prevailed. His reasoning bears directly on the "vested rights" issue. 60 Paragraph 37(c) of the Interpretation Act, S.C. 1967-68, c. 7 (now Interpretation Act, R.S.C., 1985, c. I-21, paragraph 44(c)) considered the effect of proceedings commenced under a "former enactment" and was relied upon by Merck to sustain its argument that the proceedings could only be continued in accordance with the new provision. That section read as follows: 37. Where an enactment (in this section called the "former enactment") is repealed and another enactment (in this section called the "new enactment") is substituted therefor . . . (c) every proceeding taken under the former enactment shall be taken up and continued under and in conformity with the new enactment so far as it may be done consistently with the new enactment; 61 The respondent Sherman relied on paragraph 36(c) (now paragraph 43(c)) of the Interpretation Act in support of its argument that it had an "accrued" or "accruing" right as of the date of its application for the compulsory licence. 7 Paragraph 36(c) read: 36. Where an enactment is repealed in whole or in part, the repeal does not . . . (c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed; . . . and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the penalty, forfeiture or punishment may be imposed as if the enactment had not been so repealed. 8 62 Following an extensive analysis of Ho Po Sang, Thurlow J. concluded (at page 12): Here when s. 41(3) was repealed the procedure which the Commissioner had prescribed had not reached the stage where the matter was ready for decision, since the respondent's reply to the counterstatement had not been filed and had indeed been delayed at the respondent's request. But even if it had reached that stage and had been simply awaiting decision I do not think the Page 26 318 respondent could properly be said to have had an accrued right either to a licence or to have the matter dealt with on the law as it had been. The Commissioner's authority, as I see it, is not merely to deprive an applicant of a licence where he sees good reason to do so but is an authority to decide whether or not a licence should be granted to which is coupled a direction that the licence is to be granted in the absence of good reason for refusing it. The distinction is perhaps a fine or narrow one but it is for the Commissioner rather than the applicant to say whether or not there will be a licence and the applicant has no control over the decision which the Commissioner may make on the question. As in the Ho Po Sang case the question itself was unresolved and the issue rested in the future. I agree with the submission of counsel for the appellant that at the stage which the proceeding had reached what the respondent had (whether it was stronger or not, by reason of the statutory direction for reaching a decision which s. 41(3) prescribed, than what the respondent had in the Ho Po Sang case) was nothing more than a hope. Nor do I think what the respondent had at that stage can be regarded as an "accruing" right (or privilege) within the meaning of s. 36(c) since the difficulty lies not with the words "accrued" or "accruing" but with the lack of anything that answers to the description of the words "right" or "privilege" in s. 36(c). In my opinion therefore s. 36(c) does not apply and the authority for continuing the proceeding commenced before the repeal is that contained in s. 37(c) of the Interpretation Act. 63 This analytical framework focusses the determination of whether Apotex had an "accrued" or "vested" right to the NOC. It is common ground that by February 4, 1993, "the matter was ready for decision". The question is whether the Minister's discretion with respect to the NOC had been spent as of that date. 64 Four issues are relevant to the determination of whether Apotex had a vested right to the NOC: (a) the scope of the Minister's discretion; (b) the relevance of legal advice; (c) the relevance of "pending legislative policy"; and (d) whether the matter had reached the Minister for his consideration. (a) Ministerial Discretion-Narrow or Broad 65 The scope of a decision-maker's discretion is directly contingent upon the characterization of various considerations as "relevant" or irrelevant to its exercise: see generally, R. A. Macdonald and M. Paskell-Mede, "Annual Survey of Canadian Law: Administrative Law" (1981), 13 Ottawa L. Rev. 671, at page 720. Merck argues that the Minister's discretion under subsection C.08.002(1) of the FDA Regulations ("no person shall sell . . . a new drug unless . . . [the drug has] a content Page 27 319 satisfactory to the Minister") is, as a matter of statutory construction, sufficiently broad to embrace considerations other than those dealing with safety and efficacy. In my view, there is no merit in the submission. The law on this issue was carefully and extensively reviewed by the learned Trial Judge and three other judges of the Trial Division; see Glaxo Canada Inc. v. Canada (Minister of National Health and Welfare), supra; C.E. Jamieson & Co. (Dominion) v. Canada (Attorney-General), supra; and Apotex Inc. v. Canada (Attorney-General) et al., supra. 66 I am in agreement with the Trial Judge that the FDA Regulations restrict the factors to be considered by the Minister in the proper exercise of his discretion to those concerning a drug's safety and efficacy. In reaching this conclusion, I am mindful of the two authorities cited by Merck. In Glaxo Canada Inc., supra, Rouleau J. stated that the "Minister's determination is one made in contemplation of public health and represents the implementation of social and economic policy" (at page 439). This Court made similar observations in Pfizer Canada Inc. v. Minister of National Health & Welfare et al., supra, where MacGuigan J.A. stated that "the Minister's determination was a decision made in contemplation of public health, and so amounted to an implementation of social and economic policy in a broad sense,' rather than application of substantive rules' to an individual case" (at page 440). 67 The above statements do not suggest that the Court was willing to overlook rudimentary canons of statutory construction. The matter to be resolved in Pfizer and on the Glaxo Canada appeal was the standing of the respective applicants. 9 In both cases, the drug in question had fulfilled the safety and efficacy requirements under the FDA Regulations. In both cases, the Court held that the NOC could issue. Viewed in this context, these cases do not detract from the reasoning of Dubé J. that the FDA Regulations neither expressly nor implicitly contemplate the broad scope of ministerial discretion advocated by Merck. 68 Apotex submits that the narrow scope of the Minister's discretion necessarily implies that its right to the NOC crystallized as of February 4, 1993, or in any event, prior to March 12, 1993, when the Patented Medicines Regulations came into force. Merck contends that irrespective of how the discretion is construed, the Minister is residually entitled as a matter of law to have regard to considerations other than those touching on the safety and efficacy of Apo-Enalapril. Merck has identified the need to obtain legal advice and the pending changes to the Patent Act found within Bill C-91 ("pending legislative policy") to be considerations relevant to the exercise of even a narrowly circumscribed discretion. (b) Legal Advice 69 Merck has essentially asked this Court to find that the time needed to enable a decision-maker to seek and obtain legal advice in any decision-making process is of itself a basis for denying mandamus. It also implies that confessed ignorance of a law upon which divergent judicial legal opinions have been expressed affects the public's right to performance of a statutory duty. In my opinion, both submissions must be denied. Page 28 320 70 Merck's only support for its argument is the House of Lords' decision in Engineers' and Managers' Association v. Advisory, Conciliation and Arbitration Service, [1980] 1 W.L.R. 302 (H.L.). In that case, the House of Lords determined that a labour relations board had the power to suspend, for a period of over two years, its process relating to conflicting accreditation applications. The Board felt compelled to await the outcome of indirectly related court proceedings before reaching a decision. Merck would apply this decision to maintain that as the Minister was entitled to seek legal advice, he was under no obligation to issue the NOC prior to March 12, 1993. I do not agree. 71 First, the relevant statute in Engineers' conferred upon the tribunal a significantly broader discretion than that accorded the Minister under the Patented Medicines Regulations. Second, the proceedings in that case were at a preliminary stage rather than at the final stage reached with Apotex's NDS (both reasons were offered by Dubé J.: at page 180). Finally, unlike the case before us, in Engineers' the delay caused by the need for legal clarification did not and could not automatically divest the parties of rights established under the relevant legislation. 72 The right of a decision-maker to obtain legal advice with respect to the legality of the performance of a duty is not in issue. Indeed, in light of the overwhelming opinion evidence with respect to the "legality" of issuing Apotex's NOC, the Minister's failure to seek departmental or outside opinions could have been perceived as an abdication of responsibility. But that self-imposed obligation cannot of itself deprive Apotex of its right to mandamus. In the absence of intervening legislation, the "legal advice" issue would not have arisen. It cannot now be invoked to argue that the Patented Medicines Regulations governed the ongoing decision-making process the moment they became law. 73 I am in agreement with Dubé J. that the legal advice justification is potentially endless and would almost necessarily result in allegations of abuse of discretion or unreasonable delay. Furthermore, the legal advice sought in this case had no bearing on the exercise of the Minister's narrowly circumscribed discretion. Its relevance transcends the principal question to be answered by the Minister: Is Apo-Enalapril a safe drug? This is not to suggest that once that question was answered the Minister can be said to have acted unlawfully by seeking legal advice. But the inevitable delay arising from the solicitation of legal advice (as opposed to unreasonable delay) cannot prejudice the right to performance of a statutory duty. The guiding principle is well known-equity deems to be done what should have been done. Moreover, to deny mandamus because of legal concerns generated by a party adverse in interest (Merck) is to judicially condone what might be regarded as a tactical manoeuvre intended to obfuscate and delay the decision-making process. 74 In light of the foregoing, it is unnecessary to deal with the learned Trial Judge's conclusion that [at page 181], "the Minister's delay in issuing the Apotex NOC was not warranted." Whether or not the delay was reasonable is not an issue upon which we can adjudicate as the necessary facts are not before us. Unless the Minister can establish another basis upon which to justify the decision to Page 29 321 withhold performance of a duty otherwise owed, Merck's argument must fail. (c) Pending Legislative Policy-Relevant or Irrelevant Consideration 75 In support of its submission that pending legislative policy is a consideration relevant to the exercise of the Minister's discretion, counsel for Merck has referred us to three cases. In my opinion, none support the proposition stated. Nonetheless, I shall deal with each case and then turn to the more general question: As a matter of law, should the Minister be entitled to refrain from issuing the NOC on the basis of pending legislative policy? 76 The first of the decisions is Distribution Canada Inc. v. M.N.R., supra. In that case, the applicant sought mandamus to compel the Minister of National Revenue to enforce strictly the collection of duties on non-exempt groceries being purchased in the United States. At that time it was departmental policy not to collect duties of less than $1 or even higher amounts if other factors such as traffic volumes dictated. The Trial Judge drew a distinction between a total abdication of responsibility and conflicting views regarding how the law should be enforced and found that mandamus is only available in respect of the former. On appeal, this Court held that the Minister must take all reasonable measures to enforce the customs legislation; "[t]he reasonableness of [which] requires the assessment of policy considerations which are outside the domain of the courts since they deal with the manner in which the law ought to be enforced" (at page 40). 77 In Distribution Canada, the exercise of a ministerial discretion by reference to government policy did not have as its principal objective the divestiture of acquired rights. The Court simply concluded that the Minister enjoyed a discretion with which the law would not interfere. In any event, the precedential value of this decision has been misplaced. Its relevance arises in the context of the "balance of convenience" issue and accordingly will be addressed below. 78 The second case is Wimpey Western Ltd. and W-W-W Developments Ltd. v. Director of Standards and Approvals of the Department of the Environment, Minister of the Environment and Province of Alberta (1983), 49 A.R. 360 (C.A.). 10 Here, the Alberta Court of Appeal was required to determine whether a Minister's policy views were relevant to the exercise of a discretion. The relevant subsection of the Clean Water Act, R.S.A. 1980, c. C-13, provides: 3 . . . (4) The Director of Standards and Approvals may issue or refuse to issue a permit or may require a change in location of the water facility or a change in the plans and specifications as a condition precedent to giving a permit under this section. Page 30 322 79 In Wimpey Western, the respondent denied the appellant a permit to construct its own waste water treatment facility on an industrial development site because it was felt that the erection of such treatment facilities should be deferred until a regional sewage plant was operational. That justification was in accord with the policy of the Minister of the Environment. The Court of Appeal held that the respondent's discretion was not limited to considerations of technical matters. The panel was unanimous in its analysis of the basis on which ministerial policy was deemed a relevant consideration (at pages 368-369): The purpose of the permit granting process in s. 3 is to give the Department power to control or limit potential sources of water contaminants before they are constructed. In my view, it is consistent with this purpose and with the wording of the section to allow the Director to consider a policy of his Minister aimed at limiting the number of points of discharge of contaminants into a waterway. It would seriously hamper the permit-granting system if the director could only look at applicants individually, but could not consider water quality objectives for the total river system. 80 The rather expansive view of relevant considerations advocated in Wimpey Western must be read in light of the broad discretionary power granted to the decision-maker. As well, the environmental aspects in Wimpey Western suggest a judicial predisposition, framed in terms of statutory construction, to recognize the promotion of public health concerns over a developer's self-interest. The Minister's discretion is carefully circumscribed in the case before us and specifically addresses health and efficacy concerns. 81 The last of the three cases cited, in my view, severely undermines Merck's position. In Reg. v. Anderson; Ex parte Ipec-Air Pty. Ltd. (1965), 113 C.L.R. 177 (Aust. H.C.), the applicant sought an order of mandamus directing the respondent to allow it to import an aircraft and to issue the licence necessary for it to carry freight between cities. The legislation provided (at page 177): Regulation 199 of the Regulations provides:-" . . . (2) Where the proposed service is an interstate service, the Director-General shall issue an aerial work, charter or airline licence, as the case requires, unless the applicant has not complied with, or has not established that he is capable of complying during the currency of the licence with, the provisions of these Regulations, or of any direction or order given or made under these Regulations, relating to the safety of the operations." [Emphasis added.] The respondent had refused both requests on the grounds of governmental policy against increasing the number of companies engaged in inter-State airfreight services. 82 On the issue of whether the charter licence should issue, a majority of the High Court of Australia held that mandamus was available as the respondent did not possess an unfettered discretion when deciding to issue a charter licence. The Court's rejection of government policy as a Page 31 323 relevant consideration is antithetical to Merck's submission. At pages 187-188, the High Court stated: The evidence, and particularly the Director-General's own statements, make it clear that his refusal of the charter licence had nothing whatever to do with any question of safety, and that in truth the prosecutor has established to the satisfaction of the Director-General that it is capable of complying with any and all provisions relating to the safety of the proposed operations. I read the Director-General's letter refusing the charter licence as acknowledging, even if unintentionally, that it was in spite of, and not because of, the concluding words of reg. 199(2) that the charter licence was being refused. I think the truth of the matter should be faced: the refusal of the licence was based upon nothing whatever but a policy against allowing anyone to participate in the relevant form of inter-State trade other than those already engaged in it. However wise and well-grounded in reason that policy may be, if the Regulations on their true construction authorize a refusal so based I should find great difficulty in avoiding the conclusion that reg. 197, in so far as it requires a charter licence for charter operations in inter-State air navigation, is invalid as being in conflict with s. 92 of the Constitution. In my opinion, however, such a refusal is contrary to the direct command of reg. 199(2). I regard this as a clear case for a writ of mandamus; and since on the view I take of the facts the Director-General is now under an absolute duty to issue a charter licence, a duty which is unqualified by any discretionary judgment still remaining to be exercised, I am of opinion that the tenor of the writ should be to command that that duty be performed. [Emphasis added.] 83 With respect to the application to import aircraft, the majority held that mandamus should not issue. Two of the three Judges held that this matter was within the ambit of the respondent's discretion. In a concurring judgment, the third Judge opined that the respondent was under an obligation to consider and act upon government policy (at pages 204-206). I should point out that the reasoning of the minority with respect to the first issue was premised on the reality that an order directing the respondent to issue a charter licence would be a practical nullity in light of the applicant's inability to obtain aircraft. 84 Anderson stands for the proposition that decision-makers vested with an unfettered discretion may have regard to existing government policy. What constitutes government policy (versus ministerial policy) is another matter. As the Minister's discretion in the instant case was narrowly circumscribed, it is evident that this case advances Apotex's position rather than Merck's. 85 Ultimately, the question before this Court is whether pending legislative policy can be a Page 32 324 relevant consideration notwithstanding the narrow scope of the Minister's discretion. As a matter of first impression, I am of the view that the law should not preclude the possibility of recognizing the Minister's right to refuse to perform a public duty on the basis of policy rationales underscoring impending legislation. Assuming that the Minister's discretion does not embrace health and safety criteria, it is conceivable that mandamus would not or should not issue where, for example, a person is entitled to a permit authorizing importation and sale of a product which the Minister, acting in good faith, believes poses an unacceptable health risk to Canadians. In this situation, a court may well adjourn a mandamus hearing if it could be shown that amending legislation is about to be brought into effect. In so doing, it would be effectively acknowledging and applying the "balance of convenience" test as a ground for refusing mandamus. It is thus not a question of whether the Minister has the power to refuse to perform a duty on the basis of pending changes to the legislation but whether the Court is willing to exercise its discretion to grant mandamus in light of the potential consequences. 86 Returning to the facts before us, in my view it cannot be said that in the exercise of his statutory power under the FDA Regulations the Minister was entitled to have regard to the provisions of Bill C-91 after they were enacted but before they were proclaimed in effect. In the circumstances of this case, pending legislative policy is not a relevant consideration which can be unilaterally invoked by the Minister. (d) De Facto-Decision Never Made 87 Merck argues that the reason that the NOC did not issue before March 12, 1993, was because the Minister never considered Apotex's application. Since the Minister did not exercise his discretion, the learned Trial Judge erred in purporting to dictate the outcome of the Minister's deliberations. In the absence of a finding of bad faith on the part of the Minister Merck argues that Apotex could not have acquired a vested right to the NOC. Both parties support their arguments on this issue with reference to court decisions generated by the tightening of gun control measures in the late 1970s. 88 In 1977, Parliament introduced various amendments to the Criminal Code [R.S.C. 1970, c. C-34] (Criminal Law Amendment Act, 1977, S.C. 1976-77, c. 53) with a view to further restricting the use and sale of firearms in Canada. The legislation came into effect on January 1, 1978 and as a result, orders of mandamus were sought in a number of reported instances. 11 In each case the applicant had applied for a permit and had fulfilled all conditions precedent prior to January 1. 89 In Martinoff v. Gossen, [1979] 1 F.C. 327 (T.D.), the Trial Judge found that the applicant did not have an accrued right as of January 1 to a restricted weapons business permit. The Judge based his decision upon the fact that the respondent's authority to issue the permit had been revoked and that therefore there was no one who could issue the permit. Interestingly, he does not appear to have been influenced by the fact that the application was still being processed at the time the law came into effect. Page 33 325 90 In Lemyre v. Trudel, [1978] 2 F.C. 453 (T.D.); affd on other grounds, [1979] 2 F.C. 362 (C.A.), the applicant sought mandamus ordering the respondent to issue a registration certificate with respect to a fully automatic Walther MPL 9mm. At the time of the application the gun was classified as a restricted weapon which was required to be registered with the Commissioner of the RCMP. The amended Criminal Code prohibited possession of such a weapon unless [at page 363] "on the day on which this paragraph comes into force, [it] was registered as a restricted weapon." The applicant's registration was not approved by January 1. At trial, the Judge held that the applicant had no "acquired right to possess his weapon, since without the permit and certificate such possession was quite simply prohibited" (at page 457). In brief oral reasons, the Court of Appeal concluded that the only basis on which the appellant could succeed was by establishing that: "his weapon fell within this exception, namely that it was registered (not that it might or should have been) on January 1, 1978." (at page 364). 91 Lemyre contrasts sharply with the decision of the Saskatchewan Court of Appeal in Abell v. Commissioner of Royal Canadian Mounted Police (1979), 49 C.C.C. (2d) 193 (Sask. C.A.). In Abell, the applicant was successful in obtaining a registration permit for a "F.A. Mark II (1944) Sten gun". After canvassing the decisions in Ho Po Sang and Merck & Co. Inc. v. Sherman & Ulster Ltd., Attorney-General of Canada, Intervenant, supra., the Saskatchewan Court of Appeal concluded that the applicant had complied with the requisite Criminal Code provisions as fully as possible prior to January 1, 1978 and therefore had acquired a right to have the weapon registered. 92 One commentator has noted that the decisions of this Court are "hard to reconcile" with Abell; see P.-A. Côté, supra, at pages 149-150. Yet it is not a question of choosing between Lemyre and Abell. Stare decisis dictates that the reasoning in Merck & Co. Inc. v. Sherman & Ulster Ltd., Attorney-General of Canada, Intervenant, supra prevails. This is not to suggest that Lemyre or Martinoff would be decided any differently today; certainly, it is arguable that the "balance of convenience" would favour the same result. 93 In the end, I must conclude that Apotex had a vested right to the NOC notwithstanding the Minister's failure to render a decision by March 12, 1993. (5) Balance of Convenience 94 If Apotex were found to be entitled to mandamus, Merck submits that this Court ought to exercise its discretion to refuse the order sought. It argues that mandamus should be denied where the effect would be to frustrate legislative change. Merck maintains that the principle established in Ottawa, City of v. Boyd Builders Ltd., supra, is persuasive authority for the proposition that this Court should not enforce the old legislation as Bill C-91 and the Patented Medicines Regulations were in place at the time of the hearing. 95 It is true that in Boyd Builders the Supreme Court acknowledged the relevance of pending legislative change when deciding whether to grant an order of mandamus. Unlike the Trial Judge, and with respect, I do not believe the argument can be side-stepped. Merck has touched upon what Page 34 326 has been described as a "controversial ground" upon which some courts have been prepared to deny mandamus. The decision in Boyd Builders has been cited as but one case in which courts have employed what has been labelled the "balance of convenience" test by weighing competing interests in determining the proper exercise of discretionary power: see J. M. Evans et al., Administrative Law: Cases, Text, and Materials, 3rd ed. (Toronto: Emond Montgomery, 1989), at page 1083. 96 Despite the way in which the issue was originally framed, three separate questions must be raised: (1) does the Court have the discretion to invoke the "balance of convenience" test as a ground for refusing mandamus? (2) if so, what are the criteria for its exercise? and (3) is this a case in which mandamus should be refused? I shall deal with each of the questions as required. (a) The Ambit of the Court's Discretion-Balance of Convenience 97 The case law governing mandamus reveals a number of legal techniques by which courts have, on occasion, balanced competing interests. For example, when determining the relevancy or irrelevancy of considerations influencing the decision-maker, a Court may construe either broadly or narrowly the statutory discretion imposed by apparently clearly worded legislation. The same is true of provisions which seek to encroach upon vested rights. Indeed, a discussion of vested rights can be found to be underscored by policy considerations implicit in the formal reasons for judgment. Professor Côté offers a penetrating analysis of this process in The Interpretation of Legislation in Canada, supra, at page 143: It seems that judges, in ruling on the recognition of vested rights, silently weigh individual and social consequences. The greater the prejudice suffered by the individual, the greater are the chances that vested rights will be recognized. If the individual prejudice is relatively limited (for example, when the law simply determines a "procedure"), the court is more likely to apply the new law immediately. If the judge perceives the social consequences of delays in the application of the new statute to be significant (for example, if the health or safety of the public is endangered), there will be considerable hesitation to recognize vested rights. Where survival of the earlier statute is not viewed as a threat to the interests of society, the courts find it easier to admit the existence of vested rights. 98 The Court's discretion must be exercised discriminantly. One commentator cautions that as the scope of the Court's discretion can intrude upon the rule of law, it must be exercised with the greatest of care: see Sir W. Wade, Administrative Law, 6th ed. (Oxford: Clarendon, 1988), at page 709. Another has observed that the Court has no discretion to refuse mandamus when it is the only means of securing performance of a ministerial duty, while assuming at the same time that it is not available as of right: see S. A. de Smith, Judicial Review of Administrative Action, 4th ed. by J. M. Evans (London: Stevens, 1980), at page 558. 99 Merck has asked this Court to decline to interfere with the Minister's discretion even though Page 35 327 his failure to perform a statutory duty has been found to be unjustified, in effect rendering lawful that which has been deemed unlawful. It is perhaps with these concerns in mind that Dubé J. implied that the decision in Boyd Builders prohibited the Court from exercising its discretion to deny mandamus (at page 181). Certainly, the introduction of the "balance of convenience" variable into the mandamus equation ultimately leads to the question of whether there are any limits to the considerations upon which a Court may exercise its discretion. 100 Despite obvious concerns, the law reports yield a thread of cases which may collectively lead one to conclude that the courts have all but formally recognized another guiding principle in law of mandamus. 12 In Distribution Canada Inc. v. M.N.R., supra, discussed earlier, it could be argued that the Court effectively balanced the benefits of strict enforcement of a duty against the interests of the enforcers and the general public. Arguably, a similar balancing technique was adopted in the gun control decisions. 101 By contrast, the "balance of convenience" test was effectively recognized in Re Central Canada Potash Co. Ltd. et al. and Minister of Mineral Resources for Saskatchewan (1972), 30 D.L.R. (3d) 480 (Sask. Q.B.); affd (1973), 32 D.L.R. (3d) 107 (Sask C.A.); appeal to Supreme Court dismissed (1973), 38 D.L.R. (3d) 317. The Minister's discretion in that case was unfettered and mandamus could have been denied on that ground alone. However, both the trial and appeal Courts supported an alternative ground for refusing mandamus: such an order "would lead to confusion and disorder in the potash industry." At the Court of Appeal, Chief Justice Culliton stated (at page 115): The learned Chambers Judge also held that even if mandamus lay he would not, in the exercise of his discretion, grant it in any event. There can be no doubt that mandamus is above all a discretionary remedy. While it would be difficult to state, with certainty, all of the grounds upon which a Judge would be justified in refusing the writ in the exercise of his discretionary right, such grounds are indeed broad and extensive. No doubt the learned Chambers Judge felt that to grant mandamus in this case would lead to confusion and disorder in the potash industry. That this conclusion is sound is evident from the fact that all other potash producers opposed the application for mandamus. In my opinion, such a reason would be a valid one for the exercise of the learned Chambers Judge's discretion. 102 Other courts have presumed that the Court retains an inherent discretion to refuse mandatory relief in certain circumstances. In Fitzgerald v. Muldoon, [1976] 2 N.Z.L.R. 615 (S.C.) the then recently elected Prime Minister of New Zealand announced the abolition of a superannuation scheme as promised during the election campaign. After the announcement, the Board stopped enforcing payment under the superannuation legislation on the assurance of the Prime Minister that repealing legislation would be forthcoming. Although the Court granted a declaration that the actions of the Prime Minister were illegal, it refused to grant a mandatory injunction compelling the Page 36 328 Board to collect the required contributions. Instead it adjourned the proceedings for six months with a view to seeing whether the Government fulfilled its promise to repeal the superannuation scheme. 103 On the one hand, Fitzgerald ostensively supports the principle that the executive branch of government has no power to suspend the operation of a law. To quote Marceau J.A. in Carrier-Sekani Tribal Council v. Canada (Minister of the Environment), [1992] 3 F.C. 316 (C.A.), at page 347: "It is obvious that the will of Parliament is paramount and no administrative or executive authority is entitled to contravene it, whether directly or indirectly." However, by adjourning the mandamus hearing, the Court effectively suspended the operation of the law in any case. 104 In Fitzgerald, the Trial Judge was clearly motivated by the practical consequences of granting the order. Even if the superannuation scheme were reinstated immediately, it would have taken six weeks before its operation became effective while the recovery of contributions in arrears would take considerably longer. The Trial Judge concluded (at page 623): [I]t would be an altogether unwarranted step to require the machinery of the New Zealand Superannuation Act 1974 now to be set in motion again, when the high probabilities are that all would have to be undone again within a few months. 105 It should be noted that the evidence before the Trial Judge supported the belief that Parliament was in a position to pass such legislation within the time frame envisaged by the adjournment. 106 Having regard to the above jurisprudence, I conclude that this Court possesses the discretion to refuse mandamus on the ground of "balance of convenience". The more difficult task is to identify the criteria to be applied in determining whether to exercise this discretionary power. (b) Criteria for the Exercise of the Discretion 107 The jurisprudence reveals three factual patterns in which the balance of convenience test has been implicitly acknowledged. First, there are those cases where the administrative cost or chaos that would follow upon the order's issue is obvious and unacceptable; see Distribution Canada Inc. v. M.N.R., supra; Re Central Canada Potash Co. Ltd. et al. and Minister of Mineral Resources for Saskatchewan, supra; and Fitzgerald v. Muldoon, supra. It is noteworthy that in most of these cases the duty in question was owed to the public at large rather than the individual applicant. In this sense, the law of mandamus and the law of standing may be said to intersect. This relationship was implicitly acknowledged by Desjardins J.A. in Distribution Canada v. M.N.R., supra, at page 39: I am, for my part, inclined to think that with the addition of the Finlay case, the jurisprudence does not clearly exclude the possibility of extending standing to a proceeding in mandamus where there is public interest to be expressed and there is no other reasonable way for it to be brought to court. Page 37 329 Whether the "balance of convenience" test may be employed as an ostensive vehicle by which standing requirements may be further relaxed I leave for another day. 108 The second, if more speculative, ground for denying mandamus appears to arise in instances where potential health and safety risks to the public are perceived to outweigh an individual's right to pursue personal or economic interests; see Martinoff v. Gossen, supra; Lemyre v. Trudel, supra; and Wimpey Western Ltd. and W-W-W Developments Ltd. v. Director of Standards and Approvals of the Department of the Environment Minister of the Environment and Province of Alberta, supra. 109 In this case, there is no issue that an order of mandamus would precipitate administrative chaos. It is true that such an order may well have the effect of encouraging other generic drug manufacturers who submitted NDSs before Bill C-91 and the Patented Medicines Regulations came into effect to file for mandamus. However, as only those manufacturers who meet the traditional mandamus requirements will be successful, this is not a case in which arguments in favour of administrative efficiency are particularly persuasive. Further, as Apo-Enalapril has met the safety and efficacy requirements under the FDA Regulations, no issue with respect to public health and safety arises. This leaves us with the line of authority as represented by Boyd Builders. (c) Boyd Builders 110 Merck argues that the Boyd Builders principle enables this Court to exercise its discretion to deny mandamus since in that case the Court adjourned a mandamus hearing to allow a new regulatory regime to be implemented. In my view, this principle is misconceived. Indeed, even the interpretation forwarded by Merck does not advance its case. 111 Boyd Builders applied for a building permit at a time when the extant zoning by-law would have allowed for the proposed development. News of the proposed development generated adverse public reaction in response to which the city initiated the passage of a by-law amendment to thwart the developer's project. Prior to Boyd Builders, an application for a building permit could be defeated by the passage of a by-law amendment by the Municipal Council any time up to the issuing of the permit; see Toronto Corporation v. Roman Catholic Separate Schools Trustees, [1926] A.C. 81 (P.C.). On application for mandamus the city of Ottawa sought an adjournment until such time as the Ontario Municipal Board had the opportunity to approve or reject the by-law amendment. The Supreme Court set out a tri-partite test in determining whether to grant the adjournment: (1) the municipality must establish a pre-existing intent to rezone the property prior to the application for a permit; (2) the municipality must have acted in good faith; and (3) the municipality must have acted with dispatch in seeking passage and approval of the amending by-law. 112 It is now well established that the prima facie right of a property owner to utilize his or her property in accordance with existing zoning regulations is not to be disturbed unless an intent to rezone is shown to exist prior to the application for the permit. Of course, strict application of the Boyd Builders principle does not advance Merck's case. Apotex's application for a NOC preceded Page 38 330 Parliament's intent to introduce amending legislation by a period exceeding two years. Leaving that aside, it is my opinion that the Supreme Court was not inviting courts to become embroiled in the daily political skirmishes surrounding land use planning decisions by balancing the so-called "equities": it merely sought to establish a principle by which it could be determined whether a property owner had acquired a vested right to a building permit pending approval of a by-law amendment. 113 The current state of municipal law is that if a prior intent to rezone cannot be established, then the property owner can make claim to a vested right to a building permit. This principle cannot be invoked to support the exercise of the Court's discretion in issuing mandamus by balancing competing interests. Admittedly, there are those who argue that the judiciary should play a greater role in "balancing the equities", even in planning law (see Makuch, Canadian Municipal and Planning Law, (Toronto: Carswell, 1983), at pages 251-261), and undoubtedly cases in which courts have been willing to become embroiled in the politics of land use can be found in the reports; e.g., Re Hall and City of Toronto et al. (1979), 23 O.R. (2d) 86 (C.A.). But that, in my view, does not undermine the proper application of Boyd Builders. 114 In effect, the balance of convenience test authorizes the Court to use its discretion to displace the law of relevant considerations and the doctrine of vested rights. It should therefore be used only in the clearest of circumstances and not be perceived as a panacea for bridging legislative gaps. Unless courts are prepared to be drawn into the forum reserved for those elected to office, any inclination to engage in a balancing of interests must be measured strictly against the rule of law. 115 The argument that social or economic costs outweigh the rights of Apotex obfuscates what is essentially a private law issue. In the end, I conclude that the principle set out in Boyd Builders is of no relevance to the case before us, nor to the issue of the Court's discretion to refuse mandamus in this case on the ground of "balance of convenience." Accordingly, there is no legal basis upon which the "balance of convenience" test can be applied to deny Apotex the order which it seeks. I turn now to consider whether Apotex's vested right to the NOC was divested by BilI C-91 and the Patented Medicines Regulations. (6) Retroactive or Retrospective 116 Merck argued that if Apotex acquired a vested right prior to March 12, 1993, such right was divested by subsections 5(1) and (2) of the Patented Medicines Regulations: 5. (1) Where a person files or, before the coming into force of these Regulations, has filed a submission for a notice of compliance in respect of a drug and wishes to compare that drug with, or make reference to, a drug that has been marketed in Canada pursuant to a notice of compliance issued to a first person in respect of which a patent list has been submitted, the person shall, in the submission, with respect to each patent on the patent list, Page 39 331 . . . (2) Where, after a second person files a submission for a notice of compliance, but before the notice of compliance is issued, a patent list is submitted or amended in respect of a patent pursuant to subsection 4(5), the second person shall amend the submission to include, in respect of that patent, the statement or allegation that is required by subsection (1). [Emphasis added.] 117 Leaving aside the question of the impact of the "balance of convenience" arguments on retrospective legislation, Merck proffers three distinct submissions. 118 Merck's first submission is policy-based. It asserts that Apotex created a "window of opportunity" for itself by obtaining a NOC notwithstanding the current legislation. Merck also maintains that Apotex is in effect seeking the assistance of this Court to facilitate patent infringement. (Illegality was not raised as an equitable bar to granting relief.) The relevant paragraphs from Merck's Memorandum state (appellants' memorandum of fact and law, paragraphs 87-89): 87. The Courts were not oblivious to patent rights when dealing with NOCs even under the former law. NOCs and patent rights have never occupied unrelated juristic solitudes. Under the former law, the Courts constantly emphasized that it was the compulsory license that affected the patent owners rights, and that the NOC merely enabled the generic drug company to exercise its rights under the compulsory license. The Court is now clearly confronted with a situation where Parliament has linked NOCs to protection of patent rights and the Court's assistance is being invoked to facilitate patent infringement. . . . 88. Neither the Minister (nor the Court) should turn a blind eye to the fact that from and after February 4, 1993 the "compulsory license" provisions had been repealed, and the "property interests" of patent owners such as Merck were directly and expressly referenced in Bill C-91 and the Patented Medicines (Notice of Compliance) Regulations. Parliament could hardly make clearer the mischief it intended to address in these enactments. 89. Apotex seeks to create a "window of opportunity" for itself between the former statutory regime (where patent rights were dealt with under the compulsory licence provisions) and the present statutory regime (where issuance of an NOC is tied to patent protection). The President, CEO and COO of Apotex, Bernard Sherman, has repeatedly testified in these proceedings that he intends to market enalapril across Canada as soon as possible, notwithstanding the fact that the Merck patent does not expire until October 16, 2007. Page 40 332 119 While NOCs and patent rights are linked, they have never been mutually dependent. One of the purposes of the compulsory licensing scheme was to avoid costly and protracted litigation surrounding possible patent infringement provided that the generic was willing to pay royalties. This reality, however, does not lead inevitably to the conclusion that all generic products infringe patents. In my view all that can be said is that Apo-Enalapril is a "safe" drug. To refuse mandamus on the basis of Merck's argument would be to essentially prejudge the patent issue. 120 Practically speaking, Merck is seeking an interlocutory injunction against Apotex with respect to possible patent infringement without having to satisfy the conditions precedent imposed at law to the granting of such relief. (How section 6 of the Patented Medicines Regulations will be interpreted is another matter.) In the circumstances, an order in the nature of mandamus cannot reasonably be viewed as an instrument which "facilitates" patent infringement. This Court should not close the window of opportunity by ignoring the fact that Parliament had at its disposal an effective legislative tool for divesting Apotex of what the law holds to be an acquired right. Nor can this Court turn a blind eye to the availability of conventional legal procedures to thwart patent infringement. 121 Merck's second submission is premised on the Patented Medicines Regulations being "procedural" in nature. Unquestionably, if those regulations are so characterized then it is clear that Apotex's NDS would be subject to the new statutory regime; see Howard Smith Paper Mills Ltd. et al. v. The Queen, [1957] S.C.R. 403, per Cartwright J., at pages 419-420, quoting with approval Lord Blackburn in Gardner v. Lucas (1878), 3 App. Cas. 582 (H.L.), at page 603. However, the question we must address "is not simply whether the enactment is one affecting procedure but whether it affects procedure only and does not affect substantial rights of the parties": DeRoussy v. Nesbitt (1920), 53 D.L.R. 514 (Alta. C.A.), at page 516, per Harvey C.J., cited with approval in Angus v. Sun Alliance Insurance Co., [1988] 2 S.C.R. 256, at page 265, per La Forest J. 122 In the instant case, we are not dealing with procedural regulations per se. The imposition of a criterion that a NOC cannot issue with respect to a patent-linked NDS is clearly a substantive change in the law and hence subject to the rules of statutory construction applicable to legislation purporting to affect vested rights. 123 Merck's third submission is that the intended scope of subsection 5(1) is unambiguous. If that premise is valid then it necessarily follows that there is no room to invoke the canons of statutory construction designed to assist in the interpretation of ambiguous enactments. Merck seeks to avoid the application of the presumption against retroactive operation of statutes and the presumption of non-interference with vested rights, which: "only appl[y] where the legislation is in some way ambiguous and reasonably susceptible of two constructions"; Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271, at page 282, per Dickson J. (as he then was). In my view, subsections 5(1) and (2) do not manifestly seek to divest persons of acquired rights. They are at best ambiguous. Page 41 333 124 At this juncture the issue can be tackled in one of two ways. The first invokes an extensive analysis of the law dealing with retroactivity and retrospectivity. Critical to that analysis is the need to distinguish between the principle of non-retroactivity of statutes and the principle of non-interference with vested rights. Today, it is well recognized that a statutory enactment which is forward looking but which also impairs or affects vested rights is not necessarily retroactive. The distinctions are addressed in three Supreme Court decisions: 13 Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, supra; Attorney General of Quebec v. Expropriation Tribunal et al., [1986] 1 S.C.R. 732; and Venne v. Quebec (Commission de protection du territoire agricole), [1989] 1 S.C.R. 880 (see also Lorac Transport Ltd. v. Atra (The), [1987] 1 F.C. 108 (C.A.), per Hugessen J.A., at page 117). The second approach is much simpler and reinforces my opinion that in the circumstances of this case both interpretative presumptions are applicable and that Parliament had not intended subsections 5(1) and (2) of the Patented Medicines Regulations to intrude upon vested rights. 125 For the sake of argument, assume that subsection 5(1) expressly applies to all NOCs "in the pipeline", including those to which applicants have a vested right. No one can question the fact that Parliament has the authority to pass retroactive legislation, thereby divesting persons of an acquired right. It is equally clear, however, that vested rights cannot be divested by the Patented Medicines Regulations unless the enabling legislation, that is the Patent Act or Bill C-91, implicitly or explicitly authorize such encroachments; see generally Côté, supra, at page 152. The Supreme Court endorsed this approach to regulatory interpretation in A.G. for British Columbia et al. v. Parklane Private Hospital Ltd., [1975] 2 S.C.R. 47, at page 60, per Dickson J. (as he then was): If intra vires, Order in Council 4400 would serve to extinguish retrospectively the entire claim of Parklane, but in my view it fails to have that effect. The Lieutenant Governor in Council is empowered to enact regulations for the purposes of carrying into effect the provisions of the Act, but nothing expressly or by necessary implication contained in the Act authorizes the retrospective impairment by regulation of existing rights and obligations. [Emphasis added.] 126 It is one thing for a provision of an Act of Parliament to attempt to affect vested rights and quite another for a subsection of a regulation to do the same. With one exception, I could find no provision in the Bill C-91 specifically authorizing regulations to interfere with existing or vested rights. Certainly, subsection 55.2(4) of the Patent Act, the regulation-making provision, does not expressly or implicitly authorize regulations of a retroactive nature. This explains why the legislative draftsperson did not craft subsection 5(1) of the Patented Medicines Regulations so as to embrace all NDSs "in the pipeline" by referring specifically to those in which the applicant had acquired a vested right. In my estimation, the draftsperson knew that such formulation would be ultra vires the Governor in Council. 127 By contrast, subsection 12(1) of Bill C-91 expressly extinguishes all compulsory licences granted after December 20, 1991. Like the learned Trial Judge, I am driven to the conclusion that Page 42 334 Parliament could have done the same for NOCs "in the pipeline". A purposive interpretation of subsection 5(1) of the Patented Medicines Regulations and an appreciation of the ejusdem generis canon of statutory interpretation reveal that it only applies to NDSs which had not reached the point where the Minister's discretion was spent as of March 12, 1993. (7) Jurisdiction of the Court 128 The final issue is whether the jurisdiction of this Court to grant judicial review has been "ousted" by the paramountcy provision in Bill C-91. Subsection 55.2(5) [of the Patent Act] reads: 55.2 . . . (5) In the event of any inconsistency or conflict between (a) this section or any regulations made under this section, and (b) any Act of Parliament or any regulations made thereunder, this section or the regulations made under this section shall prevail to the extent of the inconsistency or conflict. [Emphasis added.] 129 Merck's novel argument is succinctly outlined in its memorandum (at paragraphs 91-95 inclusive): 91. As previously discussed, the Patented Medicines (Notice of Compliance) Regulations on their face expressly apply to NOC applications pending before the Minister on March 12, 1993. 92. As of March 12, 1993 accordingly, Parliament had put in place a new procedure to govern disputes about the issuance or non-issuance of NOCs. The new procedure is set out in Sections 6 and 8 of the Patented Medicines (Notice of Compliance) Regulations. 93. The constitutional basis for the Federal Court Act is s. 101 of the Constitution Act 1867 which is directed to "the better Administration of the Laws of Canada". 94. The prohibition against issuance of an NOC in s. 7 of the Regulations until the procedure set out in ss. 6 and 8 of the Regulations has been complied with is as much "a law of Canada" as is s. 18 of the Federal Court Act. Indeed, and more importantly, Parliament has declared in s. 55.2(5) of the Regulations that the prohibition in the Regulations is paramount to s. 18 of the Federal Court Act and every other federal statute. Page 43 335 95. Accordingly, when this matter came on for a hearing on June 21, 1993, the Court had no more jurisdiction to issue mandamus to the Minister to issue an NOC than the Minister had jurisdiction on his own behalf to issue an NOC in the face of the prohibition in s. 7 of the Regulations. 130 I fail to see how subsection 55.2(5) or any other regulation thereunder can be said to be paramount to section 18 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 4)]: see generally Friends of the Oldman River Society v. Canada (Minister of Transport), supra, per La Forest J., at pages 38-39. Am I to assume that as the Supreme Court of Canada is a statutory Court, it too lacks jurisdiction in this matter? The answer to this submission is self-evident. There is no paramountcy issue. We have been asked to determine whether the Patented Medicines Regulations are applicable. Subsection 55.2(5) cannot be construed as a privative clause insulating the Minister and the relevant legislation from judicial review. This submission is without merit. CONCLUSION 131 The appeal and cross-appeal should be dismissed with costs. 132 Mahoney J.A.:-- I agree. 133 McDonald J.A.:-- I agree. 1 On January 5, 1993, Apotex attempted unsuccessfully to cause the Federal Court of Canada to enjoin Parliament from enacting the Bill. 2 On September 20, 1991, Merck sued Apotex for exporting enalapril to the United States and the Caribbean. Those patent infringement proceedings are still pending. 3 On appeal, Apotex encouraged this Court to infer from the Minister's refusal to disclose the substance of these opinions that they must support Apotex's legal position. I wish only to point out that I can think of a number of valid reasons why the Minister might not want a legal opinion, either favourable or unfavourable to the respective litigants, released. 4 I think it important to note that when counsel for the Minister sought the adjournment, he was not aware that the Patented Medicines Regulations would come into effect on March 12, 1993. No one, including counsel for Apotex, implied otherwise. 5 I am aware, however, that Apotex did allude to this matter; see memorandum by cross-appeal, Apotex, at p. 6, subparas. 8(c)(vi) and (vii). Page 44 336 6 Generally, the rule is that mandamus cannot issue with respect to a duty owed to the Crown. Historically, this issue has been framed as one concerning standing to bring a mandamus application. The Supreme Court has considerably loosened the requirements for standing over the decades; see Thorson v. Attorney General of Canada et al., [1975] 1 S.C.R. 138; Nova Scotia Board of Censors v. McNeil, [1976] 2 S.C.R. 265; Minister of Justice of Canada et al. v. Borowski, [1981] 2 S.C.R. 575; Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R. 607. For a discussion of the application of these cases to mandamus proceedings, see Distribution Canada Inc. v. M.N.R., supra, per Desjardins J.A. at pp. 38-39. 7 These paragraphs of the Interpretation Act are narrower in scope than the common law principles which they essentially codify: see P.-A. Côté, The Interpretation of Legislation in Canada, 2nd ed. (Cowansville, Que.: Yvon Blais, 1991), at p. 94. 8 Merck vigorously disputed the application of ss. 43(c) and 44(c) of the Interpretation Act to this appeal. It argued that since the Patented Medicines Regulations constitute a legislative enactment rather than a repeal, the provisions of the Interpretation Act which ostensibly concern the repeal of an enactment are irrelevant. In my view a change in the law effected by the addition of a further criterion is equivalent to the repeal and replacement of the previous criteria. S. 10 of the Interpretation Act directs that substance prevail over form. 9 It is arguable that Pfizer undermines Merck's legal standing to seek an order of prohibition. In that case, Pfizer, an innovator drug manufacturer, sought to have this Court set aside a decision of the Minister to issue a NOC to Apotex for the drug Piroxicam. Apotex successfully had the application quashed since, inter alia, Pfizer was not a person directly affected by the decision of the Minister. Similarly, in Glaxo Canada, supra, Glaxo's application for an interlocutory injunction to restrain the Minister from issuing Apotex a NOC for the drug Ranitidine was dismissed for lack of standing. It follows that what one cannot do directly cannot be done indirectly. In this case, the issue of standing may have been subject to one of the numerous applications preceding the appeal. In the circumstances, I assume that Merck has the requisite standing. 10 See also case annotation, Peter P. Mercer, at pp. 248-251 [of (1983), 3 Admin. L.R. 248]. 11 The only other case I am aware of is Haines v. Attorney General of Canada (1979), 32 N.S.R. (2d) 271 (C.A.). The facts of that case are too singular to be of use in this appeal. 12 Under English law it is said that mandamus may not issue where it would cause administrative chaos and public inconvenience despite conflicting authorities on this point (see Halsbury's Laws of England, 4th ed. reissue, Vol. 1(1): Administrative Law, para. 130, and conflicting cases gathered at note 12). 13 The distinction had been drawn earlier by this Court; see Northern & Central Gas Corp. v. National Energy Board, [1971] F.C. 149 (T.D.); Minister National Revenue v. Gustavson Page 45 337 Drilling (1964) Ltd., [1972] F.C. 92 (T.D.); and Zong v. Commissioner of Penitentiaries, [1976] 1 F.C. 657 (C.A.). Page 46 338 Indexed as: Canadian Broadcasting Corp. v. New Brunswick (Attorney General) (Re R. v. Carson) Canadian Broadcasting Corporation, appellant; v. The Attorney General for New Brunswick, His Honour Douglas Rice and Gerald Carson, respondents, and The Attorney General of Canada, the Attorney General for Ontario, the Attorney General of Manitoba, the Attorney General of British Columbia, the Attorney General for Saskatchewan and the Attorney General for Alberta, interveners. [1996] 3 S.C.R. 480 [1996] S.C.J. No. 38 File No.: 24305. Supreme Court of Canada 1996: March 29 / 1996: October 31. Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ. ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK Constitutional law -- Charter of Rights -- Freedom of expression -- Freedom of the press -- Trial judge excluding public and media from courtroom during part of accused's sentencing proceedings -- Whether s. 486(1) of Criminal Code infringes freedoms of expression and of the press -- If so, whether s. 486(1) justifiable in a free and democratic society -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b) -- Criminal Code, R.S.C., 1985, c. C-46, s. 486(1). Criminal law -- Exclusion of public from court -- Trial judge excluding public and media from courtroom during part of accused's sentencing proceedings -- Whether trial judge exceeded his jurisdiction in making such order -- Criminal Code, R.S.C., 1985, c. C-46, s. 486(1). Page 1 339 The accused pleaded guilty to two charges of sexual assault and two charges of sexual interference involving young female persons. On a motion by the Crown, consented to by defence counsel, the trial judge ordered the exclusion of the public and the media from those parts of the sentencing proceedings dealing with the specific acts committed by the accused, pursuant to s. 486(1) of the Criminal Code. The order was sought on the basis of the nature of the evidence, which the court had not yet heard and which purportedly established that the offence was of a "very delicate" nature. The exclusion order remained in effect for approximately 20 minutes. Afterwards, following a request by the CBC, the trial judge gave reasons for making the exclusion order, stating that it had been rendered in the interests of the "proper administration of justice"; it would avoid "undue hardship on the persons involved, both the victims and the accused". The CBC challenged the constitutionality of s. 486(1) before the Court of Queen's Bench. The court held that s. 486(1) constituted an infringement on the freedom of the press protected by s. 2(b) of the Canadian Charter of Rights and Freedoms but that the infringement was justifiable under s. 1 of the Charter. The court also held that the trial judge had not exceeded his jurisdiction in making the exclusion order. The Court of Appeal affirmed the judgment. Held: The appeal should be allowed. (1) Constitutional law issue The open court principle is one of the hallmarks of a democratic society, fostering public confidence in the integrity of the court system and understanding of the administration of justice. This principle is inextricably tied to the rights guaranteed by s. 2(b) of the Charter. The freedom to express ideas and opinions about the operation of the courts and the right of members of the public to obtain information about them are clearly within the ambit of s. 2(b). As well, s. 2(b) protects the freedom of the press to gather and disseminate this information. Members of the public in general rely and depend on the media to inform them and, as a vehicle through which information pertaining to courts is transmitted, the press must be guaranteed access to the courts in order to gather information. Measures that prevent the media from gathering that information, and from disseminating it to the public, restrict the freedom of the press guaranteed by s. 2(b). To the extent that such measures prohibit public access to the courts and to information about the courts, they may also be said to restrict freedom of expression in so far as it encompasses the freedom of listeners to obtain information that fosters public criticism of the courts. The recognition of the importance of public access to the courts as a fundamental aspect of our democratic society should not be understood, however, as affirming a right to be physically present in the courtroom; there may be a shortage of space. Nor should it be seen as extending public access to all venues within which the criminal law is administered. By its facial purpose, s. 486(1) of the Code restricts expressive activity, in particular the free flow of ideas and information, in providing a discretionary bar on public and media access to the courts. This is sufficient to ground a violation of s. 2(b). Page 2 340 The exclusion of the public under s. 486(1) of the Code is a means by which the court may control the publicity of its proceedings with a view to protecting the innocent and safeguarding privacy interests and thereby afford a remedy to the underreporting of sexual offences. This provision constitutes a reasonable limit on the freedoms guaranteed by s. 2(b) of the Charter. Section 486(1) is aimed at preserving the general principle of openness in criminal proceedings to the extent that openness is consistent with and advances the proper administration of justice. In situations where openness conflicts with the proper administration of justice, s. 486(1) purports to further the proper administration of justice by permitting covertness where necessary. This objective is of sufficient importance to warrant overriding a constitutional freedom. Section 486(1) is also proportionate to the legislative objective. First, the means adopted -- a discretionary power in the trial judge to exclude the public where it is in the interests of the proper administration of justice -- is rationally connected to the objective. The trial judge must exercise his discretion in conformity with the Charter and the grant of this judicial discretion necessarily ensures that any order made under s. 486(1) will serve the objective of furthering the administration of justice. If it is not rationally connected to the objective, then the order will constitute an error of law. Second, s. 486(1) impairs the rights under s. 2(b) as little as reasonably possible in order to achieve the objective. The discretion conferred on trial judges by s. 486(1) is not overbroad. Section 486(1) provides an intelligible and workable standard -- the proper administration of justice -- according to which the judiciary can exercise the discretion conferred. It also arms the judiciary with a useful and flexible interpretative tool to accomplish its goal of preserving the openness principle, subject to what is required by the proper administration of justice. Again, since the discretion must be exercised in a manner that conforms with the Charter, the discretionary aspect of s. 486(1) guarantees that the impairment is minimal. An order that fails to impair the rights at stake as little as possible will constitute an error. Third, the salutary effects of s. 486(1) outweigh the deleterious effects. Parliament has attempted to balance the different interests affected by s. 486(1) by ensuring a degree of flexibility in the form of judicial discretion, and by making openness the general rule and permitting exclusion of the public only when public accessibility would not serve the proper administration of justice. The discretion necessarily requires that the trial judge weigh the importance of the interests the order seeks to protect against the importance of openness and specifically the particular expression that is limited. In this way, proportionality is guaranteed by the nature of the judicial discretion. In deciding whether to order exclusion of the public pursuant to s. 486(1), a trial judge should bear in mind whether the type of expression that may be impaired by the order infringes upon the core values sought to be protected. (2) Criminal law issue In applying s. 486(1) to order the exclusion of the public, the trial judge must exercise his discretion in conformity with the Charter. He must (a) consider available options and whether there are any other reasonable and effective alternatives available; (b) consider whether the order is limited as much as possible; and (c) weigh the importance of the objectives of the particular order and its probable effects against the importance of openness and the particular expression that will be limited in order to ensure that the positive and negative effects of the order are proportionate. Page 3 341 Additionally, the burden of displacing the general rule of openness lies on the party making the application. The applicant bears the burden of proving: that the particular order is necessary, in terms of relating to the proper administration of justice; that the order is as limited as possible; and that the salutary effects of the order are proportionate to its deleterious effects. In relation to the proportionality issue, if the order is sought to protect a constitutional right, this must be considered. There must also be a sufficient evidentiary basis from which the trial judge may assess the application and upon which he may exercise his discretion judicially. In some cases in which the facts are not in dispute the statement of counsel will suffice. If there is insufficient evidence placed before the trial judge, or there is a dispute as to the relevant facts, the applicant should seek to have the evidence heard in camera. Since the trial judge considering an application to exclude the public is usually in the best position to assess the demands in a given situation, where the record discloses facts that may support the trial judge's exercise of discretion, it should not lightly be interfered with. In this case, however, the trial judge erred in excluding the public from any part of the proceedings. There was insufficient evidence to support a concern for undue hardship to the complainants or to the accused. The order was unnecessary to further the proper administration of justice and its deleterious effects were not outweighed by its salutary effects. The mere fact that the victims are young females is not, in itself, sufficient to warrant exclusion. The victims' privacy was already protected by a publication ban and there was no evidence that their privacy interests required more protection. While the criminal justice system must be ever vigilant in protecting victims of sexual assault from further victimization, the record before the trial judge did not establish that undue hardship would befall the victims in the absence of a s. 486(1) order. Nor did the record reveal that there were any other reasons to justify an exception to the general rule of openness. Finally, barring exceptional cases, there is no issue of hardship to the accused arising from prejudicial publicity once the accused has pleaded guilty. Cases Cited Applied: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; referred to: Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Scott v. Scott, [1913] A.C. 419; Re Southam Inc. and The Queen (No.1) (1983), 41 O.R. (2d) 113; Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459; Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Keegstra, [1990] 3 S.C.R. 697; Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825; R. v. Oakes, [1986] 1 S.C.R. 103; United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901; B.C.G.E.U. v. British Columbia (Attorney General),[1988] 2 S.C.R. 214; Morris v. Crown Office, [1970] 1 All E.R. 1079; R. v. O'Connor, [1995] 4 S.C.R. 411; R. v. L. (D.O.), [1993] 4 S.C.R. 419; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199; R. v. Beare, [1988] 2 S.C.R. 387; R. v. Nova Scotia Page 4 342 Pharmaceutical Society, [1992] 2 S.C.R. 606; Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69; R. v. Brint (1979), 45 C.C.C. (2d) 560; R. v. Lefebvre (1984), 17 C.C.C. (3d) 277, [1984] C.A. 370; R. v. McArthur (1984), 13 C.C.C. (3d) 152; R. v. Vandevelde (1994), 89 C.C.C. (3d) 161; R. v. Quesnel and Quesnel (1979), 51 C.C.C. (2d) 270. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 11(d). Criminal Code, R.S.C., 1985, c. C-46, ss. 151 [rep. & sub. c. 19 (3rd Supp.), s. 1], 271(1)(a), 486(1) [am. c. 27 (1st Supp.), s. 203], (3) [rep. & sub. c. 23 (4th Supp.), s. 1]. Authors Cited Lepofsky, M. David. Open Justice: The Constitutional Right to Attend and Speak About Criminal Proceedings. Toronto: Butterworths, 1985. Mill, James. "Liberty of the Press". In Essays on Government, Jurisprudence, Liberty of the Press, and Law of Nations. Reprints of Economic Classics. New York: Augustus M. Kelley, 1967. APPEAL from a judgment of the New Brunswick Court of Appeal (1994), 148 N.B.R. (2d) 161, 378 A.P.R. 161, 116 D.L.R. (4th) 506, 91 C.C.C. (3d) 560, 32 C.R. (4th) 334, dismissing the appellant's appeal from a judgment of Landry J. (1993), 143 N.B.R. (2d) 174, 366 A.P.R. 174, dismissing its application to quash an order of Rice Prov. Ct. J. excluding the public and media from part of the sentencing proceedings. Appeal allowed. André G. Richard, Marie-Claude Bélanger-Richard and Jacques McLaren, for the appellant. Graham J. Sleeth, Q.C., for the respondents. Graham Garton, Q.C., and Barbara Kothe, for the intervener the Attorney General of Canada. M. David Lepofsky and James K. Stewart, for the intervener the Attorney General for Ontario. Deborah Carlson, for the intervener the Attorney General of Manitoba. Galvin C. Deedman, for the intervener the Attorney General of British Columbia. Graeme G. Mitchell, for the intervener the Attorney General for Saskatchewan. Written submissions only by Jack Watson, Q.C., for the intervener the Attorney General for Alberta. Solicitors for the appellant: Stewart McKelvey Stirling Scales, Moncton. Solicitor for the respondents: The Office of the Attorney General, Fredericton. Solicitor for the intervener the Attorney General of Canada: George Thomson, Ottawa. Solicitor for the intervener the Attorney General for Ontario: The Ministry of the Attorney General, Toronto. Solicitor for the intervener the Attorney General of British Columbia: The Ministry of the Attorney General, Vancouver. Page 5 343 Solicitor for the intervener the Attorney General of Manitoba: The Department of Justice, Winnipeg. Solicitor for the intervener the Attorney General for Saskatchewan: W. Brent Cotter, Regina. Solicitor for the intervener the Attorney General for Alberta: Jack Watson, Edmonton. The judgment of the Court was delivered by 1 LA FOREST J.:-- This appeal is brought by the Canadian Broadcasting Corporation ("CBC") from the judgment of the New Brunswick Court of Appeal dismissing an appeal from a decision of Landry J. who had refused to quash an order of Rice Prov. Ct. J. restricting public access to the courtroom. The order in question was made pursuant to s. 486(1) of the Criminal Code, R.S.C., 1985, c. C-46, which reads: 486. (1) Any proceedings against an accused shall be held in open court, but where the presiding judge, provincial court judge or justice, as the case may be, is of the opinion that it is in the interest of public morals, the maintenance of order or the proper administration of justice to exclude all or any members of the public from the court room for all or part of the proceedings, he may so order. The order mandated the exclusion of the public and the media from the courtroom during part of the sentencing proceedings of the respondent, Gerald Carson. A pre-existing non-identification order, made pursuant to s. 486(3) of the Code, was already in effect. The CBC now seeks a declaration that s. 486(1) is of no force or effect as infringing s. 2(b) of the Canadian Charter of Rights and Freedoms and cannot be justified under s. 1 of the Charter. In the alternative, if the provision is held to be constitutionally valid, the CBC seeks a declaration that Rice Prov. Ct. J. exceeded his jurisdiction in making the exclusion order. If such a declaration is made, it further seeks an order quashing the exclusion order and a mandatory order granting access to the media and the public to a transcript of the proceedings held in camera. I. Facts 2 The facts are straightforward. The respondent, Gerald Carson, a prominent Moncton resident, pleaded guilty to two charges of sexual assault, contrary to s. 271(1)(a) of the Code, and two charges of sexual interference, contrary to s. 151 of the Code. On motion by Crown counsel, consented to by defence counsel, Rice Prov. Ct. J. ordered the exclusion of the public and the media, with the exception of the accused, the victims, their immediate families and a victim services coordinator, from those parts of the sentencing proceedings dealing with the specific acts committed by Carson. The exclusion order remained in effect for approximately 20 minutes. The order was sought on the basis of the nature of the evidence, which the court had not yet heard, and which Page 6 344 purportedly established that the offence was of a "very delicate" nature. Crown counsel further pointed to the fact that the case involved young, female persons. 3 André Veniot, a CBC reporter, was excluded from the court along with the other members of the media and the public. Shortly after the public had been invited to reattend the proceedings, a lawyer retained by Veniot was granted permission to address the court. She requested that Rice Prov. Ct. J. give reasons for making the exclusion order. In maintaining his order, Rice Prov. Ct. J. stated that it had been rendered in the interests of the proper administration of justice; it would avoid undue hardship to the victims and the accused. II. Judicial History Court of Queen's Bench (1993), 143 N.B.R. (2d) 174 4 A constitutional challenge to s. 486(1) of the Code was then made before the Court of Queen's Bench of New Brunswick on the basis of s. 2(b) of the Charter. Landry J., who heard the matter, held that since s. 486(1) limits or prohibits the right of the public and the press to gather and publish information in court proceedings in certain instances, it constitutes an infringement on the freedom of the press protected by s. 2(b). 5 Landry J. then considered whether the infringement could be saved by s. 1 of the Charter as being reasonable and demonstrably justified in a free and democratic society. He found that s. 486(1) addressed a pressing and substantial objective since it was a mechanism to ensure the "proper administration of justice" (p. 179). He also determined that the infringement is proportionate to that objective. He stated: "There exists a rational connection between the section and the objective, the section impairs the freedom as little as possible and there is some balance between the importance of the objective and the injurious effect of the section" (p. 179). He, therefore, concluded that s. 486(1) is saved by s. 1 of the Charter. 6 In deciding whether the trial judge had exceeded his jurisdiction in ordering the exclusion of the public, Landry J. noted that the test was not whether he would have excluded the public in the same circumstances. The proper administration of justice, which Rice Prov. Ct. J. relied on, was an appropriate reason for the exercise of his discretion in this case. Landry J. further noted that the public and the press were excluded for a short period of time only and as such he found no injustice had been done to the parties involved in the proceedings. Finally, he stated (at pp. 181-82): It is important for the proper administration of justice to preserve the discretion provided by s. 486(1) and a Court of Appeal should not substitute its judgment for that of a judge who felt compelled to exercise a discretion as did the judge in the present case. Although this is a borderline case I find that the judge acted within his jurisdiction by excluding the public. It would, however, have been preferable if the judge had elaborated more on his reasons for excluding the public and the press. Page 7 345 Court of Appeal (1994), 148 N.B.R. (2d) 161 Hoyt C.J.N.B. (for the majority) 7 In the Court of Appeal, Hoyt C.J.N.B. (speaking for himself and Turnbull J.A.) expressed the view that freedom of expression, as protected by s. 2(b) of the Charter, includes the right of the media, as well as any member of the public, to attend criminal trials. He agreed with Landry J.'s finding that s. 486(1) limits freedom of expression and is, therefore, contrary to s. 2(b), but he also agreed that the provision could be saved by s. 1 of the Charter. The case, he found, illustrates why s. 486(1) can be justified; the failure to have made the order would likely have resulted in the further victimization of the complainants, by permitting details of the offences to be published and the possible identification of the complainants. And this was so notwithstanding that a non-publication order was already in effect. 8 As to the particular exercise of discretion by Rice Prov. Ct. J., he agreed with Landry J. that it was not for him to say whether he would have exercised the discretion in the same fashion. He found it was Rice Prov. Ct. J.'s belief that the young complainants in this case deserved protection. That being so, he concluded: "For this reason alone, I cannot say that he was wrong in making the order, even though, in my view, he may have taken an irrelevant factor into consideration, namely, the protection of the accused from undue hardship" (p. 169). He did not rule out the protection of the accused as a factor in other cases; however, he concluded that Rice Prov. Ct. J.'s other reasons were sufficient. Angers J.A. 9 Angers J.A. concurred, but for different reasons. He first observed that most of the issues raised by the appellant were moot since the trial was over and the sentence had been imposed. He further noted that it would be wrong for a non-party to the proceedings to succeed in having an interlocutory order quashed or altered when the parties themselves could not appeal. He next discussed the right to a public trial as a means of protecting the accused. The right was prescribed in s. 486(1) of the Code and guaranteed by s. 11(d) of the Charter. He noted, however, that there was no express right in any legislation, including the Charter, giving the public access to trials; rather, in criminal law the right of the public to be present in court is merely a corollary of the right of the accused to a public trial. As such, it is a subordinate to, and cannot prevail over the principal right. In his view, s. 486(1) provides the necessary guidelines to permit the presiding judge to exercise his or her discretion in a judicial manner. Given the respondent Carson's consent to the order, he found that a possible infringement of the respondent's s. 11(d) right did not arise. 10 Angers J.A. stated that he could not accept that s. 2(b) of the Charter gives the media better access to court proceedings than members of the public. He added (at p. 174): The principle of a public trial goes beyond a particular accused and must be approached while keeping in mind the reasons that led to the right: that no Page 8 346 person be convicted of a criminal offence behind closed doors or on secret and unknown evidence. It is the duty of all those involved in the administration of the criminal justice system to see that the principle is upheld. While the public, through the Attorney General, is involved in the administration of criminal justice, the media per se is not. Its interests are different. Its duty is to inform, its temptation to entertain. It was given and it should have the constitutional freedom to perform its duty to inform, but the gathering of information involves different considerations such as individual privacy, defamation, due process of law, fair trial. . . . 11 Angers J.A. concluded that s. 486(1) involves a balancing between the constitutional rights of an accused to a public trial and the protection of a certain class of witnesses or potential witnesses. It had nothing to do with, and does not infringe on any freedom of the press to publish what is legally permissible. The argument of the media that freedom to publish necessarily includes freedom to gather information was, in his view, really "misleading and fallacious" (p. 175). III. Issues 12 The CBC then sought and was granted leave to appeal to this Court. Two major issues arise in this appeal. The first relates to the constitutionality of s. 486(1) of the Code and is conveniently set forth in the constitutional questions stated by the Chief Justice on September 18, 1995: 1. Does s. 486(1) of the Criminal Code, R.S.C., 1985, c. C-46, limit the freedom of expression of the press in whole or in part as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms? 2. If so, is the limit one that can be justified in accordance with s. 1 of the Charter? The second issue is whether Rice Prov. Ct. J. exceeded his jurisdiction in making the order excluding members of the media and the public from a part of the sentencing proceedings, thereby committing reversible error. 13 Before turning to these issues, I propose to address some preliminary matters raised by the interveners. The first of these matters, brought to our attention by the Attorney General for Ontario, relates to the sequence in which the Court should deal with the issues. He argued that the constitutionality of the provision should not be considered until it has been determined whether Rice Prov. Ct. J. properly exercised his discretion. If he did not, then he acted without jurisdiction, and the constitutional question need not, and should not, be considered. Such an approach may certainly be appropriate in some situations, but in the present case, I am disposed to deal with the constitutional question with a view to providing guidance to courts faced with the issue in the future. 14 A second preliminary matter, raised by the Attorney General of Canada, concerns the Page 9 347 appropriate scope of constitutional review to be undertaken in relation to s. 486(1). Rice Prov. Ct. J. granted the order of exclusion solely on the basis of the "proper administration of justice". The Attorney General of Canada contends that the Court should not go beyond the circumstances of this case and review the constitutionality on each of the three grounds for exclusion set forth in s. 486(1). 15 This Court has in the past exhibited a reluctance to consider the constitutionality of legislative provisions in the absence of a proper factual foundation; see Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086. To accede to the appellant's contention that the other grounds be constitutionally reviewed would require us to conduct such review in the absence of a factual framework, contrary to this Court's practice. Moreover, it would be dangerous to make a determination of the constitutionality of the other two grounds for exclusion under s. 486(1) by extrapolation from the constitutional review of the proper administration of justice ground; the values and interests invoked may differ depending upon the specific legislative context. It is best, then, to leave to another day the constitutionality of the other two statutory grounds for exclusion, and to focus solely on the ground relied upon by Rice Prov. Ct. J., i.e., the proper administration of justice. 16 I come then to an analysis of the major issues, beginning with the constitutional issue. IV. The Constitutional Issue A. Section 2(b) of the Charter 17 This appeal engages two essential issues in relation to s. 2(b). The first is integrally linked to the concept of representative democracy and the corresponding importance of public scrutiny of the criminal courts. It involves the scope of public entitlement to have access to these courts and to obtain information pertaining to court proceedings. Any such entitlement raises the further question: the extent to which protection is afforded to listeners in addition to speakers by freedom of expression. The second issue relates to the first, in so far as it recognizes that not all members of the public have the opportunity to attend court proceedings and will, therefore, rely on the media to inform them. Thus, the second issue is whether freedom of the press protects the gathering and dissemination of information about the courts by members of the media. In particular, it involves recognition of the integral role played by the media in the process of informing the public. Both of these issues invoke the democratic function of public criticism of the courts, which depends upon an informed public; in turn, both relate to the principle of openness of the criminal courts. 18 The freedom of individuals to discuss information about the institutions of government, their policies and practices, is crucial to any notion of democratic rule. The liberty to criticize and express dissentient views has long been thought to be a safeguard against state tyranny and corruption. James Mill put it this way: Page 10 348 So true it is, however, that the discontent of the people is the only means of removing the defects of vicious governments, that the freedom of the press, the main instrument of creating discontent, is, in all civilized countries, among all but the advocates of misgovernment, regarded as an indispensable security, and the greatest safeguard of the interests of mankind. ("Liberty of the Press", in Essays on Government, Jurisprudence, Liberty of the Press, and Law of Nations (1825 (reprint ed. 1967)), at p. 18.) 19 This Court has had occasion to discuss the freedom to criticize encompassed in freedom of expression and its relation to the democratic process in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, where Cory J. stated that it is difficult to think of a guaranteed right more important to a democratic society than freedom of expression. At page 1336, he declared: Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized. 20 It cannot be disputed that the courts, and particularly the criminal courts, play a critical role in any democracy. It is in this forum that the rights of the powerful state are tested against those of the individual. As noted by Cory J. in Edmonton Journal, courts represent the forum for the resolution of disputes between the citizens and the state, and so must be open to public scrutiny and to public criticism of their operations. 21 The concept of open courts is deeply embedded in the common law tradition. The principle was described in the early English case of Scott v. Scott, [1913] A.C. 419 (H.L.). A passage from the reasons given by Lord Shaw of Dunfermline is worthy of reproduction for its precise articulation of what underlies the principle. He stated at p. 477: It moves Bentham over and over again. "In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice." "Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial." "The security of securities is publicity." But amongst historians the grave and enlightened verdict of Hallam, in which he ranks the publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten: "Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, Page 11 349 and obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise." 22 The importance of ensuring that justice be done openly has not only survived: it has now become "one of the hallmarks of a democratic society"; see Re Southam Inc. and The Queen (No.1) (1983), 41 O.R. (2d) 113 (C.A.), at p. 119. The open court principle, seen as "the very soul of justice" and the "security of securities", acts as a guarantee that justice is administered in a non-arbitrary manner, according to the rule of law. In Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, openness was held to be the rule, covertness the exception, thereby fostering public confidence in the integrity of the court system and understanding of the administration of justice. 23 The principle of open courts is inextricably tied to the rights guaranteed by s. 2(b). Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings. While the freedom to express ideas and opinions about the operation of the courts is clearly within the ambit of the freedom guaranteed by s. 2(b), so too is the right of members of the public to obtain information about the courts in the first place. Cory J. in Edmonton Journal described the equally important aspect of freedom of expression that protects listeners as well as speakers and ensures that this right to information about the courts is real and not illusory. At pages 1339-40, he states: That is to say as listeners and readers, members of the public have a right to information pertaining to public institutions and particularly the courts. Here the press plays a fundamentally important role. It is exceedingly difficult for many, if not most, people to attend a court trial. Neither working couples nor mothers or fathers house-bound with young children, would find it possible to attend court. Those who cannot attend rely in large measure upon the press to inform them about court proceedings -- the nature of the evidence that was called, the arguments presented, the comments made by the trial judge -- in order to know not only what rights they may have, but how their problems might be dealt with in court. It is only through the press that most individuals can really learn of what is transpiring in the courts. They as "listeners" or readers have a right to receive this information. Only then can they make an assessment of the institution. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media. [Emphasis added.] That the right of the public to information relating to court proceedings, and the corollary right to put forward opinions pertaining to the courts, depend on the freedom of the press to transmit this Page 12 350 information is fundamental to an understanding of the importance of that freedom. The full and fair discussion of public institutions, which is vital to any democracy, is the raison d'être of the s. 2(b) guarantees. Debate in the public domain is predicated on an informed public, which is in turn reliant upon a free and vigorous press. The public's entitlement to be informed imposes on the media the responsibility to inform fairly and accurately. This responsibility is especially grave given that the freedom of the press is, and must be, largely unfettered. The significance of the freedom and its attendant responsibility lead me to the second issue relating to s. 2(b). 24 Essential to the freedom of the press to provide information to the public is the ability of the press to have access to this information. In Canadian Broadcasting Corp. v. Lessard, [1991] 3 S.C.R. 421, I noted that freedom of the press not only encompassed the right to transmit news and other information, but also the right to gather this information. At pp. 429-30, I stated: There can be no doubt, of course, that it comprises the right to disseminate news, information and beliefs. This was the manner in which the right was originally expressed, in the first draft of s. 2(b) of the Canadian Charter of Rights and Freedoms before its expansion to its present form. However, the freedom to disseminate information would be of little value if the freedom under s. 2(b) did not also encompass the right to gather news and other information without undue governmental interference. [Emphasis added.] 25 It is by ensuring the press access to the courts that it is enabled to comment on court proceedings and thus inform the public of what is transpiring in the courts. To this end, Cory J. stated in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1991] 3 S.C.R. 459, at p. 475: The media have a vitally important role to play in a democratic society. It is the media that, by gathering and disseminating news, enable members of our society to make an informed assessment of the issues which may significantly affect their lives and well-being. 26 From the foregoing, it is evident that s. 2(b) protects the freedom of the press to comment on the courts as an essential aspect of our democratic society. It thereby guarantees the further freedom of members of the public to develop and to put forward informed opinions about the courts. As a vehicle through which information pertaining to these courts is transmitted, the press must be guaranteed access to the courts in order to gather information. As noted by Lamer J., as he then was, in Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122, at p. 129: "Freedom of the press is indeed an important and essential attribute of a free and democratic society, and measures which prohibit the media from publishing information deemed of interest obviously restrict that freedom." Similarly, it may be said that measures that prevent the media from gathering that information, and from disseminating it to the public, restrict the freedom of the press. To the extent that such measures prohibit public access to the courts and to information about the Page 13 351 courts, they may also be said to restrict freedom of expression in so far as it encompasses the freedom of listeners to obtain information that fosters public criticism of the courts. 27 At this point, however, I should like to make a number of caveats to the recognition of the importance of public access to the courts as a fundamental aspect of our democratic society. First of all, this recognition is not to be confused with, nor do I wish to be understood as affirming a right to be physically present in the courtroom. Circumstances may produce a shortage of physical space, such that individual members of the media and the public may be denied physical access to the courts. In such circumstances, those excluded may have to rely on those present to relay information about the proceedings. 28 To this I would add a further caveat. I do not accept that the necessary consequence of recognizing the importance of public access to the courts is the recognition of public access to all facets of public institutions. The intervener, Attorney General for Saskatchewan argues that if an open court system is to be protected under s. 2(b) of the Charter on the basis that the public has an entitlement to information about proceedings in the criminal courts, then all venues within which the criminal law is administered will have to be accessible to the public, including jury rooms, a trial judge's chambers and the conference rooms of appellate courts. The fallacy with this argument is that it ignores the fundamental distinction between the criminal courts, the subject of this appeal, and the other venues mentioned by the intervener. Courts are and have, since time immemorial, been public arenas. The same cannot be said of these other venues. Thus, to argue that constitutional protection should be extended to public access to these private places, on the basis that public access to the courts is constitutionally protected, is untenable. 29 Furthermore, this Court has noted on previous occasions that public access to certain judicial processes would render the administration of justice unworkable; see MacIntyre, supra. The importance of ensuring that the administration of justice is not rendered unworkable provides a palpable reason for prohibiting public access to many of the other types of processes of which the intervener makes mention. Indeed, as we have seen in this case, the open court principle itself must yield to circumstances that would render the proper administration of justice unworkable. B. Does Section 486(1) of the Criminal Code Infringe Section 2(b)? 30 At common law, the rule of public access to the courts was subject to certain exceptions, primarily where it was deemed necessary for the administration of justice. In Scott, supra, Earl Loreburn, at pp. 445-46, described the basis for exclusion of the public from the courts in these terms: Again, the Court may be closed or cleared if such a precaution is necessary for the administration of justice. Tumult or disorder, or the just apprehension of it, would certainly justify the exclusion of all from whom such interruption is expected, and, if discrimination is impracticable, the exclusion of the public in general. Or witnesses may be ordered to withdraw, lest they trim their evidence Page 14 352 by hearing the evidence of others. 31 The common law is effectively reflected in the current Canadian statutory form of the rule, s. 486(1) of the Code, which begins with "[a]ny proceedings against an accused shall be held in open court", thereby preserving and giving statutory effect to the general rule of openness. It then vests in a trial judge the discretion to make an exclusionary order for, among other reasons, the furtherance of the proper administration of justice. 32 The appellant submits that s. 486(1) infringes s. 2(b) of the Charter. Having said that s. 2(b) protects the freedom of the press to gather and disseminate information relating to court proceedings, and protects the freedom of the public to comment upon our criminal courts as an essential attribute of our democratic society, a provision that excludes the public and the media from the courtroom must infringe s. 2(b). 33 By its facial purpose, s. 486(1) restricts expressive activity, in particular the free flow of ideas and information, in providing a discretionary bar on public and media access to the courts. This is sufficient to ground a violation; any provision that has as its purpose the restriction of expression will necessarily violate s. 2(b); see Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, at p. 974. 34 Admittedly, s. 486(1) only permits such restriction on freedom of expression and freedom of the press where values of superordinate importance so require. To this end, the respondents argue that s. 486(1) supports, as opposed to violates, the values of the Charter, in that it permits the courts to maintain control over their own processes, as well as advancing core values including the protection of victims and witnesses, privacy interests and inherent limitations on freedom of expression such as public order and decency. In answer to the respondents' submissions, however, it is to be noted that this Court has repeatedly favoured a balancing of competing interests at the s. 1 stage of analysis. Specifically, Dickson C.J. stated in R. v. Keegstra, [1990] 3 S.C.R. 697, that "s. 1 of the Charter is especially well suited to the task of balancing" and found that freedom of expression jurisprudence supported that view. He continued, at p. 734: It is, in my opinion, inappropriate to attenuate the s. 2(b) freedom on the grounds that a particular context requires such; the large and liberal interpretation given the freedom of expression in Irwin Toy indicates that the preferable course is to weigh the various contextual values and factors in s. 1. [Emphasis in original.] 35 This approach was again adopted in the recent case of Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, where the broad, purposive interpretation to be favoured in relation to s. 2(b) is discussed. At para. 75, it is stated that "[t]he important thing is that the competing values of a free and democratic society have to be adequately weighed in the appropriate context." Thus, I conclude that s. 486(1) of the Code infringes s. 2(b) of the Charter and leave to s. 1 an assessment of the competing interests and factors tending to justify restrictions on the guaranteed freedom. Page 15 353 C. Section 1 Analysis 36 I turn now to an examination of whether s. 486(1) is reasonable and demonstrably justified in a free and democratic society within the meaning of s. 1 of the Charter following the analytical framework developed by this Court in R. v. Oakes, [1986] 1 S.C.R. 103. But in undertaking this task, it must be remembered, a formalistic approach must be avoided. Regard must be had to all circumstances. The Court thus described the proper approach to be taken in Ross, supra, at para. 78: . . . the Oakes test should be applied flexibly, so as to achieve a proper balance between individual rights and community needs. In undertaking this task, courts must take into account both the nature of the infringed right and the specific values the state relies on to justify the infringement. This involves a close attention to context. McLachlin J. in RJR-MacDonald, supra, reiterated her statement in Rocket v. Royal College of Dental Surgeons of Ontario, [1990] 2 S.C.R. 232, at pp. 246-47, that conflicting values must be placed in their factual and social context when undertaking a s. 1 analysis. [Emphasis added.] Having affirmed the flexible and contextual approach to be taken, it is apposite to examine the context within which this appeal arises in light of the specific values engaged. 37 The first such value is the power vested in courts of criminal jurisdiction to control their own process in furtherance of the rule of law. This was recognized in United Nurses of Alberta v. Alberta (Attorney General), [1992] 1 S.C.R. 901, where McLachlin J. noted that "[t]he rule of law is directly dependent on the ability of the courts to enforce their process and maintain their dignity and respect" (p. 931). Similarly, in B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214, this Court referred to the English decision of Morris v. Crown Office, [1970] 1 All E.R. 1079 (C.A.), where, at p. 1081, it was said: The course of justice must not be deflected or interfered with. Those who strike at it strike at the very foundations of our society. To maintain law and order, the judges have, and must have, power at once to deal with those who offend against it. In B.C.G.E.U., supra, Dickson C.J. affirmed the power of courts to act in furtherance of the proper administration of justice. While said in the context of discussing contempt of court, the principle of permitting a court to control its own process may be said to extend to situations, such as the one at bar, where the court is granted a discretion to act in the interests of the proper administration of justice to exclude the public from criminal proceedings. 38 Related to a court's power to control its own process is the power to regulate the publicity associated with its proceedings. As such, it has been held that a legislative provision mandating a publication ban upon request by the complainant or prosecutor in sexual assault cases is constitutional; see Canadian Newspapers, supra. This Court has also recognized a common law Page 16 354 discretion on the part of courts to order a publication ban; see Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835. 39 The court's power to regulate the publicity of its proceedings serves, among other things, to protect privacy interests, especially those of witnesses and victims. In MacIntyre, supra, Dickson J., as he then was, noted that "[m]any times it has been urged that the 'privacy' of litigants requires that the public be excluded from court proceedings" (p. 185) and in the course of weighing this interest against the interest of public access to court proceedings held that the protection of the innocent from unnecessary harm "is a valid and important policy consideration" (p. 187). Stating that the "curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance" (pp. 186-87), he identified the protection of the innocent as among these values. 40 While the social interest in protecting privacy is long standing, its importance has only recently been recognized by Canadian courts. Privacy does not appear to have been a significant factor in the earlier cases which established the strong presumption in favour of open courts. That approach has generally continued to this day, and this appears inherent to the nature of a criminal trial. It must be remembered that a criminal trial often involves the production of highly offensive evidence, whether salacious, violent or grotesque. Its aim is to uncover the truth, not to provide a sanitized account of facts that will be palatable to even the most sensitive of human spirits. The criminal court is an innately tough arena. 41 Bearing this in mind, mere offence or embarrassment will not likely suffice for the exclusion of the public from the courtroom. As noted by M. D. Lepofsky in Open Justice: The Constitutional Right to Attend and Speak About Criminal Proceedings (1985), at p. 35: "Proceedings cannot be closed only because the subject of the charges relates to purportedly morality-tinged topics such as sex." In the course of the balancing exercise under s. 1, the exigencies and realities of criminal proceedings must be weighed in the analysis. 42 Nonetheless, the right to privacy is beginning to be seen as more significant. Thus Cory J. in Edmonton Journal, supra, considered that the protection accorded the privacy of individuals in a legislative enactment related to a pressing and substantial concern and underlined its importance in Canadian law. In this area of the law, however, privacy interests are more likely to be protected where it affects some other social interest or where failure to protect it will cause significant harm to the victim or to witnesses. This is particularly so of sexual assault cases. As L'Heureux-Dubé J. recently put it in R. v. O'Connor, [1995] 4 S.C.R. 411, a case involving the production of complainants' medical records in relation to charges of sexual offences (at para. 158): This Court has already recognized that society has a legitimate interest in encouraging the reporting of sexual assault and that this social interest is furthered by protecting the privacy of complainants: [R. v. Seaboyer, [1991] 2 S.C.R. 577], at pp. 605-6. Parliament, too, has recognized this important interest Page 17 355 in s. 276(3)(b) of the Criminal Code. Similar views had earlier been expressed by Lamer J., in Canadian Newspapers, supra; see also L'Heureux-Dubé J. in R. v. L. (D.O.), [1993] 4 S.C.R. 419, at pp. 441-42. 43 So far as s. 486(1) of the Code is concerned, then, exclusion of the public is a means by which the court may control the publicity of its proceedings with a view to protecting the innocent and safeguarding privacy interests and thereby afford a remedy to the underreporting of sexual offences. 44 Having set forth the relevant context, the s. 1 analysis developed in Oakes, supra, may now be undertaken. This approach requires two things to be established: the impugned state action must have an objective of pressing and substantial concern in a free and democratic society; and there must be proportionality between the objective and the impugned measure. (1) Legislative Objective 45 To constitute a justifiable limit on a right or freedom, Oakes tells us, the objective of the impugned legislation must advance concerns that are pressing and substantial in a free and democratic society. The appellant CBC maintains that the legislative objective of s. 486(1) is "to allow the exclusion of the public in criminal proceedings if it is in the interests of: (1) the safeguard of public morals; (2) the maintenance of order; or (3) the proper administration of justice". I have already indicated my intention to confine this appeal to consideration of the third branch for exclusion, the "proper administration of justice". As to this branch, the CBC concedes its pressing and substantial nature, but notes its imprecision. 46 I would characterize the objective somewhat differently. Section 486(1) aims at preserving the general principle of openness in criminal proceedings to the extent that openness is consistent with and advances the proper administration of justice. There are situations where openness conflicts with the proper administration of justice. The provision purports to further the proper administration of justice by permitting covertness where necessary. This recharacterization of the objective leaves intact that which the appellant conceded was of a pressing and substantial nature: the exclusion of the public from criminal proceedings in three specific cases. In light of the appellant's concession, I do not intend to say more than that this objective clearly passes the first step of the s. 1 analysis. 47 The second step, or the proportionality inquiry, is broken down into three further requirements that must be established, namely: the legislative measure must be rationally connected to the objective; it must impair the guaranteed right or freedom as little as possible; and there must be proportionality between the deleterious effects of the measures and their salutary effects; see RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199, at para. 60. (2) Proportionality (a) Rational Connection Page 18 356 48 In an attempt to discern whether the legislative means are rationally connected to the legislative objective, McLachlin J., in RJR-MacDonald, supra, at para. 154, noted that in some cases, the relationship between the infringement of the rights and the benefit sought to be achieved may not be "scientifically measurable". In such cases, she continued, "this Court has been prepared to find a causal connection between the infringement and benefit sought on the basis of reason or logic, without insisting on direct proof of a relationship between the infringing measure and the legislative objective". It was also my view in RJR-MacDonald, supra, that a common-sense analysis was sufficient to satisfy the rational connection branch. In the present case, where the benefit sought to be realized by the operation of s. 486(1) is the furtherance of the administration of justice, the benefit is not scientifically measurable; nor is the relationship between the benefit and the infringement. As such, it is appropriate to proceed under the rational connection inquiry on the basis of logic and reason. 49 Whether s. 486(1) is rationally connected to the legislative objective requires a determination of whether the particular legislative means adopted -- a discretionary power in the trial judge to exclude the public where it is in the interests of the proper administration of justice -- serves the legislative objective. 50 The discretionary element of s. 486(1) is crucial to the analysis. In this respect, the Court has held discretion to be an essential feature of the criminal justice system. As was noted in R. v. Beare, [1988] 2 S.C.R. 387, at p. 410, a "system that attempted to eliminate discretion would be unworkably complex and rigid". In some cases, the Criminal Code provides no guidelines for the exercise of discretion, and yet, as was stated in Beare, supra, "[t]he day to day operation of law enforcement and the criminal justice system nonetheless depends upon the exercise of that discretion" (p. 411). 51 In Dagenais, supra, Lamer C.J. discussed the common law discretion to order a publication ban and held that a discretionary power cannot confer the power to infringe the Charter. The discretion must be exercised within boundaries set by the Charter; an exercise of discretion exceeding these boundaries would result in reversible error. The Chief Justice further held that a publication ban should only be ordered when two things are established: (1) that the ban is necessary to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (2) that the salutary effects of the ban outweigh the deleterious effects to the free expression of those affected by it. This standard, he noted, "clearly reflects the substance of the Oakes test applicable when assessing legislation under s. 1 of the Charter" (p. 878). Accordingly when a judge orders a ban that contravenes this standard, the judge commits an error of law, and the order is reviewable on that basis. 52 In applying s. 486(1), then, a court must exercise its discretion in conformity with the Charter. In this way, the judicial discretion guarantees that any order made pursuant to s. 486(1) will be rationally connected to the legislative objective of furthering the proper administration of justice. Once we accept the importance of discretion as an integral aspect of our criminal justice system, Page 19 357 then the case for discretion in the hands of the courts is perhaps the strongest. In R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, Gonthier J. discussed the need for limitations on law enforcement discretion. This need is met where the discretion is vested in the courts, because the exercise of discretion is reviewable. 53 Thus, the grant of judicial discretion in s. 486(1) necessarily ensures that any order made will be rationally connected to the legislative objective. If it is not, then the order will constitute an error of law; the proper course in such a case is to review the particular exercise of discretion and provide an appropriate remedy. Section 486(1) sets up a means, logically connected to the legislative objective of furthering the proper administration of justice, which permits a court to order the exclusion of the public where an open court would impede this objective. 54 The appellant contends that vesting in inferior courts the discretion to make a s. 486(1) order on the ground of the proper administration of justice is to provide insufficient guidance to courts in the exercise of their discretion. This contention is essentially an allegation that the legislation is vague or overbroad. I find it more appropriate to deal with the vagueness argument under the minimum impairment branch of the analysis. It is to this that I now turn. (b) Minimal Impairment 55 In examining whether s. 486(1) impairs the rights under s. 2(b) as little as reasonably possible in order to achieve its objective, I begin by referring to McLachlin J.'s articulation of this requirement in RJR-MacDonald, supra, at para. 160: "The impairment must be 'minimal', that is, the law must be carefully tailored so that rights are impaired no more than necessary." However, she qualified this somewhat by noting that the tailoring process will rarely admit of perfection and thus, if the law "falls within a range of reasonable alternatives, the courts will not find it overbroad merely because they can conceive of an alternative which might better tailor objective to infringement". 56 I have noted the appellant's submission that the discretion conferred on trial judges by s. 486(1), to exclude the public from the courts in the interests of the proper administration of justice, is vague. In Osborne v. Canada (Treasury Board), [1991] 2 S.C.R. 69, Sopinka J. discussed the concept of vagueness and the ways in which it could arise (at pp. 94-95): Vagueness can have constitutional significance in at least two ways in a s. 1 analysis. A law may be so uncertain as to be incapable of being interpreted so as to constitute any restraint on governmental power. The uncertainty may arise either from the generality of the discretion conferred on the donee of the power or from the use of language that is so obscure as to be incapable of interpretation with any degree of precision using the ordinary tools. In these circumstances, there is no "limit prescribed by law" and no s. 1 analysis is necessary as the threshold requirement for its application is not met. The second way in which vagueness can play a constitutional role is in the analysis of s. 1. A law which Page 20 358 passes the threshold test may, nevertheless, by reason of its imprecision, not qualify as a reasonable limit. Generality and imprecision of language may fail to confine the invasion of a Charter right within reasonable limits. In this sense vagueness is an aspect of overbreadth. [Emphasis added.] 57 Allegations of overbreadth, of which allegations of vagueness are said to be an aspect, are more appropriately dealt with in relation to minimal impairment; see Osborne, supra, at p. 95. In the present case, the appellant's submission as to vagueness relates more to imprecision and generality, than to an allegation that s. 486(1) is incapable of interpretation with any degree of precision and thus not a limit prescribed by law. (I note that Gonthier J. writing in Nova Scotia Pharmaceutical Society, supra, preferred to reserve the term "vagueness" for the most serious degree of vagueness where the law could not be said to constitute a "limit prescribed by law" and to use overbreadth for the other aspect of vagueness. My use of "vagueness" in this case should be construed as meaning "overbreadth".) 58 In Osborne, Sopinka J. discussed vagueness in relation to the granting of wide discretionary powers and held that "[m]uch of the activity of government is carried on under the aegis of laws which of necessity leave a broad discretion to government officials" (p. 95). He then cited a passage from Irwin Toy, supra, at p. 983, in which this Court held that the law is rarely an exercise in absolute precision and that the question is whether there is an intelligible standard to guide the judiciary in doing its work. 59 Section 486(1) provides an intelligible standard -- the proper administration of justice -- according to which the judiciary can exercise the discretion conferred. The phrase "administration of justice" appears throughout legislation in Canada, including the Charter. Thus, "proper administration of justice", which of necessity has been the subject of judicial interpretation, provides the judiciary with a workable standard. 60 Section 486(1) arms the judiciary with a useful and flexible interpretative tool to accomplish its goal of preserving the openness principle, subject to what is required by the proper administration of justice, and the discretionary aspect of s. 486(1) guarantees that the impairment is minimal. Again relying upon the fact that the discretion must be exercised in a manner that conforms with the Charter, the discretion bestowed upon the court by s. 486(1) ensures that a particular exclusionary order accomplishes just what is necessary to advance the interests of the proper administration of justice and no more. An order may be made to exclude certain members of the public, from part or all of the proceedings, and for specific periods of time. As such, an order that fails to impair the rights at stake as little as possible will constitute an error. This is exemplified by R. v. Brint (1979), 45 C.C.C. (2d) 560 (Alta. S.C., App. Div.), where a new trial was ordered when it was found that a trial judge had ordered the entire trial to be held in camera when the facts established that the proper administration of justice only required the complainant's evidence to be taken in camera. The case illustrates that the public should only be excluded from the part of the proceedings where public access would offend against the proper administration of justice. Page 21 359 61 The order should be limited as much as possible. In Dagenais, supra, Lamer C.J. stated that a publication ban should only be ordered where it is necessary, and where reasonably available alternatives would not accomplish the same result. The same is true of the discretion accorded by s. 486(1) of the Code. (c) Proportional Effects 62 The "proportional effects" stage of the analysis requires a consideration of whether the deleterious effects of s. 486(1) outweigh the salutary effects of excluding the public from the courts where it is required by the proper administration of justice. Parliament has attempted to balance the different interests affected by s. 486(1) by ensuring a degree of flexibility in the form of judicial discretion, and by making openness the general rule and permitting exclusion of the public only when public accessibility would not serve the proper administration of justice. The discretion necessarily requires that the trial judge weigh the importance of the interests the order seeks to protect against the importance of openness and specifically the particular expression that is limited. In this way, proportionality is guaranteed by the nature of the judicial discretion. 63 It is important to stress that the particular expression that is limited in a given case may impact upon the s. 1 balancing. In RJR-MacDonald, supra, I noted that the evidentiary requirements of a s. 1 analysis will vary substantially with the nature of the right infringed. In the case of freedom of expression, this Court has consistently held that the level of constitutional protection to which expression will be entitled varies with the nature of the expression. More specifically, the protection afforded freedom of expression is related to the relationship between the expression and the fundamental values this Court has identified as being the "core" values underlying s. 2(b). I put the matter this way in RJR-MacDonald, at para. 72: Although freedom of expression is undoubtedly a fundamental value, there are other fundamental values that are also deserving of protection and consideration by the courts. When these values come into conflict, as they often do, it is necessary for the courts to make choices based not upon an abstract, platonic analysis, but upon a concrete weighing of the relative significance of each of the relevant values in our community in the specific context. This the Court has done by weighing freedom of expression claims in light of their relative connection to a set of even more fundamental values. In Keegstra, supra, at pp. 762-63, Dickson C.J. identified these fundamental or "core" values as including the search for political, artistic and scientific truth, the protection of individual autonomy and self-development, and the promotion of public participation in the democratic process. [Emphasis added.] This Court has subjected state action that jeopardizes these "core" values to a "searching degree of scrutiny". Where, on the other hand, the expression in question lies far from the "centre core of the spirit" of s. 2(b), state action restricting such expression is less difficult to justify. Page 22 360 64 In the case of s. 486(1), the type of expression impaired will vary from case to case. This makes it difficult to consider the extent to which the expression restricted by s. 486(1) relates to the "core" values under a s. 1 analysis, in light of the fact that the expression will not always be of the same type. For example, some expression that is restricted by s. 486(1) may be connected to the "core" values. The expression may relate to the ability of the public to participate in and contribute to the democratic system. By restricting public access to the expressive content of court proceedings, s. 486(1) inhibits informed public criticism of the court system, thereby directly impeding public participation in our democratic institutions, one of the "core" values protected by s. 2(b) of the Charter. However, in other cases, s. 486(1) may be used to exclude the public from proceedings where the presence of the public would impede a witness's ability to testify, thereby impairing the attainment of truth, another "core" value; see R. v. Lefebvre (1984), 17 C.C.C. (3d) 277, [1984] C.A. 370; R. v. McArthur (1984), 13 C.C.C. (3d) 152 (Ont. H.C.). On the other hand, exclusion may be ordered from that part of the proceedings where the most lurid or violent details of the offence are recounted, such that the restricted expression would lie far from the core of s. 2(b). In the end, the important point is that in deciding whether to order exclusion of the public pursuant to s. 486(1), a trial judge should bear in mind whether the type of expression that may be impaired by the order infringes upon the core values sought to be protected. 65 In sum, it is my view that the means enacted pursuant to s. 486(1) are proportionate to the legislative objective. It must be recalled that the appropriate means of remedying a particular exclusionary order having deleterious effects outweighing its salutary effects is through judicial review of the given order. 66 From the foregoing analysis, I conclude that s. 486(1) constitutes a justifiable limit on the freedom of expression guaranteed by s. 2(b) of the Charter and is thereby saved by s. 1. V. The Discretion A. Manner of Exercise 67 Much of my s. 1 analysis has turned on the fact that s. 486(1) vests a discretion in the trial judge. In view of the reliance I have placed on discretion in assessing constitutional validity, I think the manner in which this discretion is to be exercised warrants some discussion beyond the simple assertion that it must comply with the Charter. In doing so, I will restrict my comments to exclusion in the interest of the "proper administration of justice". 68 In Dagenais, supra, this Court reviewed the constitutionality of a publication ban ordered pursuant to the common law rule. As I have already mentioned, Lamer C.J. stated that the common law rule governing the issuance of publication bans must comply with the principles of the Charter. As he put it: "Since the common law rule does not authorize publication bans that limit Charter rights in an unjustifiable manner, an order implementing such a publication ban is an error of law on the face of the record" (p. 865). Holding that the exercise of discretion must be consistent with the Page 23 361 Charter, Lamer C.J. set out a list of general guidelines for future cases. These guidelines essentially impose on the trial judge the requirements of a s. 1 balancing at the stage of determining whether or not to order a ban. These include three directives which echo the three steps of the proportionality analysis of the Oakes test. 69 The same directives are equally useful in assisting the trial judge in exercising his or her discretion within the boundaries of the Charter when exercising the judicial discretion to order exclusion of the public under s. 486(1). Stated in the context of such an order, the trial judge should, therefore, be guided by the following: (a) the judge must consider the available options and consider whether there are any other reasonable and effective alternatives available; (b) the judge must consider whether the order is limited as much as possible; and (c) the judge must weigh the importance of the objectives of the particular order and its probable effects against the importance of openness and the particular expression that will be limited in order to ensure that the positive and negative effects of the order are proportionate. 70 Additionally, I provide the following for guidance on the procedure to be undertaken upon an application for a s. 486(1) order. 71 The burden of displacing the general rule of openness lies on the party making the application. As in Dagenais, supra, the applicant bears the burden of proving: that the particular order is necessary, in terms of relating to the proper administration of justice; that the order is as limited as possible; and, that the salutary effects of the order are proportionate to its deleterious effects. In relation to the proportionality issue, if the order is sought to protect a constitutional right, this must be considered. 72 There must be a sufficient evidentiary basis from which the trial judge may assess the application and upon which he or she may exercise his or her discretion judicially. In some cases in which the facts are not in dispute the statement of counsel will suffice. If there is insufficient evidence placed before the trial judge, or there is a dispute as to the relevant facts, the applicant should seek to have the evidence heard in camera. This may be done by way of a voir dire, from which the public is excluded. For example, in the present case, a voir dire could have been held to permit the Crown to disclose the facts not known to Rice Prov. Ct. J. in an effort to provide him with a more complete record from which to make his decision. The decision to hold a voir dire will be a function of what is necessary in a given case to ensure that the trial judge has a sufficient evidentiary basis upon which to act judicially. 73 A sufficient evidentiary basis permits a reviewing court to determine whether the evidence is capable of supporting the decision. In this regard, in R. v. Vandevelde (1994), 89 C.C.C. (3d) 161 (Sask. C.A.), Vancise J.A., at p. 171, referred to the concurring reasons of Kaufman J.A. in Page 24 362 Lefebvre, supra, at pp. 282-83 C.C.C., who stated: . . . public trials are the order . . . and any exceptions (as provided for in s. 442) [now s. 486(1)] must be substantiated on a case by case basis. In my respectful view, it is not good enough to say "the nature of this case is sexual", and an in camera hearing should, therefore, be imposed. Nor, with respect, is it sufficient for a judge to say that he or she would follow the "current practice". Discretion is an important element of our law. But, it can only be exercised judiciously when all the facts are known . . . . [Emphasis added by Kaufman J.A.] 74 Similarly, in the Alberta Court of Appeal's decision in Brint, supra, McGillivray C.J.A., noting that a trial in open court is "fundamental to the administration of justice in this country", stated that exclusion could only be ordered where "there are real and weighty reasons". A sufficient evidentiary basis allows the judge to determine whether such reasons exist; see R. v. Quesnel and Quesnel (1979), 51 C.C.C. (2d) 270 (Ont. C.A.), where the court found there was insufficient information before the trial judge to enable him to order any part of the Crown's case held in camera; see also Vandevelde, supra, where the court held that the party seeking the order must place sufficient evidence before the trial judge to permit a judicious exercise of discretion. 75 The information available to the trial judge must also allow a determination as to whether the order is necessary in light of reasonable and effective alternatives, whether the order has been limited as much as possible and whether the positive and negative effects of the order are proportionate. 76 Finally, I must address the exercise of judicial discretion in this case and, specifically, the order made by Rice Prov. Ct. J. In doing this, it is only fair to say that Rice Prov. Ct. J. made his order prior to this Court's decision in Dagenais, supra. He did not, therefore, have the benefit of the three-part inquiry that I have discussed above and adapted to the particular s. 486(1) context. B. Review of Judicial Discretion 77 In reviewing the trial judge's decision to exclude the public from part of the proceedings, it must be remembered that the trial judge is usually in the best position to assess the demands of the given situation. In Lefebvre, supra, the Quebec Court of Appeal found that the trial judge had acted judicially in excluding the public where a witness might have suffered stress from the circumstances of the case rendering her incapable of testifying. It continued (at p. 280 C.C.C.): [Translation] [The trial judge] saw the witness and he could appreciate the stress which she was affected by. Sitting in appeal, and not having had the benefit of seeing and hearing the witness, I am of the opinion that it is not appropriate for this court to question the decision of the trial judge. Page 25 363 The court stated that where a victim of sexual assault does not want to give evidence because of the stress created by the presence of too many people, this could adversely affect the proper administration of justice. It concluded that the trial judge was in the best position to consider the victim's nervousness and was aware of the facts that would be revealed by that witness. 78 Where the record discloses facts that may support the trial judge's exercise of discretion, it should not lightly be interfered with. The trial judge is in a better position to draw conclusions from the facts he or she sees and hears, and upon which he or she may exercise the judicial discretion. This, however, presupposes that the trial judge has a sufficient evidentiary or factual basis to support the exercise of discretion and that the evidence is not misconstrued or overlooked. 79 In the present case, Rice Prov. Ct. J. had this to say in support of his decision to exclude the public from part of the sentencing proceedings: The application made under 486(1) and the ban -- I granted the order on the third ground that is for the proper administration of justice. The reason for that is that I am privy, due to documentation which I have before me, and did have before me prior to the application being made before -- by request -- I had it delivered to me prior to today's hearing which is normal. On the opinion that the proper administration of justice -- in order for the court to have at least on the court record the exact nature of the events including some of the details with regard to those events -- in order for justice to properly be done, it was necessary to do these, to -- sorry, to have these facts presented to me in the manner in which they subsequently were and that was the basis of the order. I quite often make orders in this regard. This is the first time that I have been challenged, but that's alright, you are entitled to challenge it. . . . But, however, if these facts were to be presented for the exposure to the public, it would cause I think a great undue hardship on the persons involved, both the victims and the accused, although no representations were made on behalf of the accused other than Mr. Letcher's consent to Mr. Wood's application for the exclusion, and that is the reason. I think that the important thing is that the court know what the facts -- they were presented to me in the manner in which I think would have embarrassed unnecessarily other people but I think that it was important for me to know. Thus, I think that the ground was, for the proper administration of justice, I say some of the facts I knew beforehand or some I had some idea, I didn't know exactly what the facts were thus the Order. 80 The appellant focuses upon the judge's finding that public access would have embarrassed some people, and submits that this is not a sufficient ground upon which to exclude the public, citing Quesnel, supra, in support of this submission. In Quesnel, the Ontario Court of Appeal held that the embarrassment of witnesses "alone is not reason to suppose that truth is more difficult or unlikely or that the witness will be so frightened as to be unable to testify" (p. 275). While it is true Page 26 364 that this would not suffice if it were the only ground for exclusion, the decision to exclude was not solely based upon a finding that a public presence would embarrass the witnesses. Rice Prov. Ct. J. also mentioned "great undue hardship on the persons involved, both the victims and the accused" among his reasons for making the order. 81 With respect to concerns relating to undue hardship, it is my view that where the circumstances and evidence support such concerns, "undue hardship on the persons involved" may, in the interests of the proper administration of justice, amount to a legitimate reason to order exclusion. The question is whether this reason is valid in the circumstances here. My conclusion with respect to this question is that the validity of these concerns is fatally impaired both in relation to the victims and to the accused. 82 I will deal first with the concerns of undue hardship to the victims. Neither the record nor the reasons provided by the Crown support a finding that the proper administration of justice required the exclusion of the public from part of the sentencing proceedings. In making his order, Rice Prov. Ct. J. had the benefit of victim impact statements and a pre-sentence report. The latter, however, was not included in the record before this Court. The victim impact statements did not disclose evidence of undue hardship that would ensue as a result of public attendance during the sentencing proceedings, nor did they disclose the circumstances of the sexual offences that were ultimately divulged during sentencing. Indeed, Rice Prov. Ct. J. expressly stated that he did not have all the facts before him in making the order: "I say some of the facts I knew beforehand or some I had some idea, I didn't know exactly what the facts were thus the Order." 83 In its submission, the Crown gave the following in support of his application for a s. 486(1) order: The nature of the evidence, of which the court hasn't heard, that constitutes the offence is very delicate. It involves young persons, female persons, and I would just ask maybe the court would consider invoking [s. 486(1)] for purposes of -- Most sexual assault cases involve evidence that may be characterized as "very delicate". The evidence did not establish that this case is elevated above other sexual assaults. This point was conceded by the Crown during oral submissions. 84 The mere fact that the victims are young females is not, in itself, sufficient to warrant exclusion. There were other effective means to protect them. Indeed, the privacy of the victims was already protected by a non-publication order by which their identities were withheld from the public. There was no evidence that their privacy interests required more protection. The victims were not witnesses in the proceedings, the evidence of particulars of the offences having been read in by the Crown. As such, no stress could be said to emanate from their having to testify, and the protection of witnesses was in no way jeopardized. While the criminal justice system must be ever vigilant in protecting victims of sexual assault from further victimization, it is my view that the record before Rice Prov. Ct. J. did not establish that undue hardship would befall the victims in the Page 27 365 absence of a s. 486(1) order. Nor did the record reveal that there were any other reasons to justify an exception to the general rule of openness. 85 The importance of a sufficient factual foundation upon which the discretion in s. 486(1) is exercised cannot be overstated, particularly where the reasons given by the trial judge in support of an exclusion order are scant. In this case, the record does not reveal that such a foundation existed or that the facts known to Rice Prov. Ct. J. established that the proper administration of justice required exclusion of the public in the interests of the victims. 86 At this point, I would pause to sympathize with the position in which the trial judge found himself. His sensitivity to the complainants cannot be overlooked, nor should it be. And where the record discloses sufficient information to legitimate concerns for undue hardship to the complainants, then exclusion of the public may be necessary for the proper administration of justice. However, in this case, exclusion cannot be justified on this ground in the absence of more than is disclosed by the record. 87 As to the concern expressed for undue hardship to the accused, barring exceptional cases, I cannot think there is any issue of hardship to the accused arising from prejudicial publicity once the accused has pleaded guilty. The publicity associated with a public trial will in almost every case cause some prejudice to the accused. The criminal justice system has addressed much of the potential for prejudice with procedural safeguards to ensure that trials do not proceed in the absence of reasonable and probable grounds, and that fairness is protected. Once an accused has pleaded guilty, however, prejudice is greatly diminished as the risk of having wrongly accused the person being tried is eliminated. 88 The fact that closure of the court was only ordered during the sentencing proceedings bears considerably upon my determination that the accused was not likely to suffer undue hardship in this case. As alleged by the intervener Attorney General for Ontario, the deterrence and public denunciation functions of sentencing are not to be undervalued. Public scrutiny of criminal sentencing advances both these functions by subjecting the process to the public gaze and its attendant condemnation. The type of expression restricted in this case, expression relating to the sentencing process, weighs in favour of maintaining open court. In any criminal case, the sentencing process serves the critically important social function of permitting the public to determine what punishment fits a given crime, and whether sentences reflect consistency and proportionality. In sexual assault cases, the importance of subjecting sentencing to public scrutiny is especially strong. "Sexual assault" in law encompasses a wide array of different types of activities, with varying penalties. It is, therefore, essential to inform the public as to what is encompassed in the term "sexual assault" and the range of punishment it may attract. 89 In this case, there was insufficient evidence to support a concern for undue hardship to the accused or to the complainants. The order was not necessary to further the proper administration of justice and the deleterious effects of the order were not outweighed by its salutary effects. On the Page 28 366 whole, and with some reluctance in light of the proper deference to be accorded the exercise of discretion in these types of cases, I conclude that Rice Prov. Ct. J. erred in excluding the public from any part of the proceedings. VI. Disposition 90 Following oral argument for the appellant on the constitutional issue, the Chief Justice gave judgment for the Court that s. 486(1) of the Code was constitutionally valid. On this aspect, then, all that requires to be done is to respond to the constitutional questions. 91 On the exclusion order of Rice Prov. Ct. J., I find that he improperly exercised his discretion in the circumstances of this case. 92 Accordingly, the appeal is allowed and the judgment of the Court of Appeal on this point is reversed. I would quash the exclusion order and order access to the media and the public to the transcript of that part of the proceedings held in camera. Both constitutional questions are answered in the affirmative. cp/d/hbb/DRS/DRS Page 29 367 368 Case Name: Canadian Tire Corp. v. Canadian Bicycle Manufacturers Assn. Between Canadian Tire Corporation, Limited, applicant, and Canadian Bicycle Manufacturers Association, Raleigh Canada Limited, Groupe Procycle Inc., A. Mordo And Son Ltd., Yong Qi (Changzhou) Industrial Co., Ltd., Liyang (Shen Zhen) Machinery Co., Ltd., Liyang (Vietnam) Industries Co., Ltd., Specialized Bicycle Components Canada, Inc., Cervélo Cycles Inc., Giant Manufacturing Co., Ltd., Taiwan Bicycle Exporters' Association, Kenton Bicycle Co., Acebike Bicycle Co., Ltd., Pride International Inc., China Bicycle Association, China Chamber of Commerce For Import And Export of Machinery And Electronic Products, Bangkok Cycle Industrial Company Limited, Retail Council of Canada, Canadian Association of Specialty Bicycle Importers, Trek Bicycle Corporation, Cannondale Bicycle Corporation, Giant Bicycle Canada Inc., Astro Engineering Vietnam Co., Ltd., Asama Yuh Jium International Vietnam Co. Ltd., Always Co., Ltd., Vietnam Sheng Fa International Co., Ltd., Dragon Bicycles Vietnam Co. Ltd., Syndicat De Métallos, Genesis Cycle Inc., Laidlaw Holdings Inc./To Wheels, Duke's Cycle, Norco Products Ltd., Ryder Distribution Inc., The Government of The Kingdom of Thailand, Bicicletas Mercurio, S.A. De C.V., Italcycle Inc., Bicycle Trade Association of Canada, The Government of The United Mexican States, Giant China Co. Ltd., The Government of Taiwan, .243 Racing Inc., The Government of The Republic of Turkey, The Government of The People's Republic of China, The Government of The Republic of Philippines, The Government of The Socialist Republic of Vietnam, Smooth Shifting Sports, Inc., Brantford Cyclepath, Bayview Cycle Centre, Independent Bicycle Dealer Association, Primeau Vélo, Cycles Devinci Inc., Accessoires Pour Vélo O.G.D. Ltée and Bicycle Page 1 369 Sports Pacific, respondents [2006] F.C.J. No. 204 [2006] A.C.F. no 204 2006 FCA 56 2006 CAF 56 346 N.R. 186 146 A.C.W.S. (3d) 395 Docket A-439-05 Federal Court of Appeal Ottawa, Ontario Nadon J.A. Heard: February 2, 2006. Judgment: February 10, 2006. (16 paras.) Administrative law -- Judicial review and statutory appeal -- Affidavits filed in support of judicial review applications must be confined to the facts within the personal knowledge of the deponent, and the deponent must not interpret evidence previously considered by a tribunal or draw legal conclusions. Civil Evidence -- Affidavits -- Striking out -- Affidavit in support of a judicial review application struck on the grounds that it constituted opinion evidence. Application to strike an affidavit. In September, 2005, the Canadian International Trade Tribunal issued a report after an inquiry into the importation of bicycles. It concluded that the increase in imported bicycles was the principal cause of the serious injuries suffered by domestic producers of like or directly competitive goods, and recommended to the Department of Finance that it impose a surtax. Canadian Tire Corporation commenced a judicial review application, and filed a forty-five paragraph affidavit from William Dovey in support. The Canadian Bicycle Manufacturers Association and the other respondents claimed that the affidavit was opinion evidence. Canadian Tire Corporation countered that some of the paragraphs were factual and not opinion. Page 2 370 HELD: Application allowed. Affidavits filed in support of judicial review applications must be confined to the facts within the personal knowledge of the deponent, and the deponent must not interpret evidence previously considered by a tribunal or draw legal conclusions. The purpose of the Dovey affidavit was to demonstrate that the conclusions reached by the Tribunal are not supported by, nor consistent with, the information contained within the Tribunal's report. While there were paragraphs that were factual statements and not opinion, they cannot be dissociated from the paragraphs which constitute opinion evidence. The affidavit is therefore struck in its entirety. Counsel: Riyaz Dattu, for the applicant. Martin G. Masse and Keith Cameron, for the respondents. REASONS FOR ORDER 1 NADON J.A.:-- On February 10, 2005, the Canadian International Trade Tribunal (the "CITT") commenced a Global Safeguard Inquiry into the importation of bicycles and finished painted bicycle frames, following a complaint brought by the respondents herein who alleged that the said bicycles and painted bicycle frames were being imported into Canada in such increased quantities and under such conditions as to cause or threaten serious injury to domestic producers of like or competitive goods. 2 Following its investigation into the matter, the CITT, on September 1, 2005, issued a Report containing its determinations and recommendations. More particularly, the CITT concluded that the increase in imported bicycles was the principal cause of the serious injuries suffered by the domestic producers of like or directly competitive goods. As a result, the CITT recommended to the Department of Finance that it impose a surtax set at 30% in the first year of application, 25% in the second year, and 20% in the third year. 3 On September 29, 2005, the applicant, Canadian Tire Corporation ("Canadian Tire"), commenced a judicial review application in respect of the CITT's Report and on October 31, 2005, it filed the affidavit of William C. Dovey in support of its application. 4 On November 18, 2005, the respondents filed a motion for an order striking out the said affidavit in its entirety. 5 The Dovey affidavit is comprised of 45 paragraphs. After outlining his qualifications and experience (paragraphs 1 to 4), Mr. Dovey sets out the scope of the opinion which he intends to give (paragraphs 5 to 8), with a qualification of that opinion (paragraph 9). He then provides, at Page 3 371 paragraph 10, his summary comments and conclusions. He then sets out, at paragraphs 11 through 42, his approach and analysis. Finally, at paragraph 43, he sets out the specific findings which lead him to conclude as he does. 6 For the present purposes, it will suffice for me to reproduce paragraphs 8, 9, 10 and 43 of the affidavit: 8. In the context of the above, I was asked to address and answer from a financial and accounting point of view the following questions: Are the determinations and recommendations by the Tribunal concerning bicycles pursuant to the Global Safeguard Inquiry consistent with and supported by the financial evidence and information set out in the Tribunal Report? 9. My opinions and comments are qualified because the scope of my review was limited to the financial and other information set out in the Tribunal Report. I understand that the Tribunal had significant additional financial information available to it that is not now available to me. I am not able to determine the extent to which such additional information, were it available to me, would have impacted on my observations and opinions set out herein. 10. Based on the scope of my review and subject to the assumptions, qualifications and restrictions noted herein, my conclusions are as follows: a) The financial evidence and information set out in the Tribunal Report is contradictory to and not supportive of certain of the Tribunal's determinations; b) There are alternative conclusions one can draw from the financial evidence and information set out in the Tribunal Report. [...] Page 4 372 43. Set out below are my summary findings based on the scope of my review and subject to the assumptions and restrictions noted herein: i) The rate of growth in imports slowed over the five year period under review. ii) Based on certain measures, the financial condition of domestice producers improved over the period 2000 to 2004. The improvement in gross margin percentage and reduction in losses between 2000 and 2004 suggests improvement in the overall financial condition of domestic producers despite increases in imports. iii) The domestic producers may not have had the capacity to supply the domestic market if imports were substantially reduced. iv) There is no support in the Tribunal Report for an assumption that, had the imports not increased, the domestic producers are now capable of a substantial production increase while maintaining existing profitability. v) Factors other than the volume of and rate of increase in imports may be the drivers of domestic production, sales and profit. 7 For the reasons that follow, it is my view that there can be no doubt whatsoever that the affidavit must be struck in its entirety. 8 To begin with, it is clear that the Dovey affidavit constitutes opinion evidence, the purpose of which is to demonstrate to this Court that the conclusions reached by the CITT in its Report and, in particular, that the increase in the number of bicycles and finished painted bicycle frames into Canada is a principal cause of the serious injury caused to the domestic market, are not supported by, nor are they consistent with the financial evidence and information contained in the CITT Report. 9 Recently, in Ly v. Canada (Minister of Citizenship and immigration), [2003] F.C.J. No. 1496, 2003 FC 1184, dated October 10, 2003, Mr. Justice von Finkenstein, in the context of an application for judicial review of a decision of the Appeals Division of the Immigration and Refugee Board, correctly, in my view, dealt with the nature of affidavits that could be filed in support of a judicial review application. At paragraph 10 of his Reasons, the learned Judge expressed his view as follows: [10] Except on motions, affidavits shall be confined to facts within the personal knowledge of the deponent: Rule 81(1), Federal Court Rules, 1998. The affidavit Page 5 373 must be free from argumentative materials and the deponent must not interpret evidence previously considered by a tribunal or draw legal conclusions (Deigan v. Canada (A.G.) (1996), 206 N.R. 195 (Fed. C.A.); West Region Tribal Council v. Booth (1992), 55 F.T.R. 28; First Green Park Pty. Ltd. v. Canada (A.G.), [1997] 2 F.C. 845). If an affidavit does not meet these requirements, the application can only succeed if an error is apparent on the face of the record (Turcinovica v. Canada (M.C.I.), [2002] F.C.J. No. 216, 2002 FCT 164). 10 In Deigan v. Canada, supra, to which Mr. Justice von Finkenstein refers in support of his view, this Court agreed that the Motions Judge was correct in striking out certain paragraphs of the affidavit at issue on the grounds that these paragraphs were tendentious, opinionated and argumentative. 11 Although I agree with counsel for the applicant that certain paragraphs of Mr. Dovey's affidavit are factual statements and not opinion, they cannot be dissociated from the paragraphs which, in effect, constitute Mr. Dovey's opinion. Further, some of the paragraphs, namely paragraphs 1 to 4, which set out Mr. Dovey's qualifications and experience, are of no use to this Court on their own. Indeed, the true purpose of the Dovey affidavit is not to present facts for consideration of the Court, but to present facts which are already within the existing record so as to argue that the conclusions reached by the CITT are not justified. Paragraph 8 of Mr. Dovey's affidavit, which I again reproduce, makes that perfectly clear: 8. In the context of the above, I was asked to address and answer from a financial and accounting point of view the following questions: Are the determinations and recommendations by the Tribunal concerning bicycles pursuant to the Global Safeguard Inquiry consistent with and supported by the financial evidence and information set out in the Tribunal Report? 12 In other words, the purpose of the affidavit is to provide to this Court an assessment of the evidence which differs from that made by the CITT. That evidence is, in my view, not admissible in this judicial review application. 13 Another reason for striking the Dovey affidavit is that it constitutes evidence that was not before the CITT when it issued its Report. Allowing the introduction of the affidavit would have the effect of transforming the application before this Court into a de novo application. Were I to conclude that the affidavit is admissible, I would then have to grant, if they so wished, leave to the respondents to file their own "expert" affidavits in response to that of Mr. Dovey. The parties would most certainly proceed to discovery and file the transcripts of the evidence adduced thereat. In the end, this Court would be called upon to decide the issues raised by the judicial review application on evidence which the CITT had never considered. Page 6 374 14 In any event, as Mr. Justice MacKay of the Federal Court stated in Vancouver Island Peace Society v. Canada, [1994] 1 F.C. 102, at paragraphs 56 and 57 of his Reasons, the issues which arise in judicial review proceedings are generally of a legal nature and not issues of a scientific or technical nature in respect of which the Court is in need of help from experts. 15 For these reasons, I will allow, with costs, the respondents' motion to strike the Dovey affidavit in its entirety. 16 There remains one issue to be dealt with. At the end of their arguments, the parties informed me that Canadian Tire had not yet filed its Application Record and that, as a result, the time to do so had elapsed. The respondents were in agreement with Canadian Tire that the delay to file the Application Record should be extended. However, the respondents were of the view that a delay of 20 days was sufficient, while Canadian Tire requested a delay of 45 days. In the circumstances, I am prepared to give Canadian Tire an additional 45 days to file its Application Record. NADON J.A. Page 7 375 376 Indexed as: Dunsmuir v. New Brunswick David Dunsmuir, Appellant; v. Her Majesty the Queen in Right of the Province of New Brunswick as represented by Board of Management, Respondent. [2008] 1 S.C.R. 190 [2008] S.C.J. No. 9 2008 SCC 9 File No.: 31459. Supreme Court of Canada Heard: May 15, 2007; Judgment: March 7, 2008. Present: McLachlin C.J. and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. (173 paras.) Appeal From: ON APPEAL FROM THE COURT OF APPEAL FOR NEW BRUNSWICK Catchwords: Administrative law -- Judicial review -- Standard of review -- Proper approach to judicial review of administrative decision makers -- Whether judicial review should include only two standards: correctness and reasonableness. Administrative law -- Judicial review -- Standard of review -- Employee holding office "at pleasure" in provincial civil service dismissed without alleged cause with four months' pay in lieu of Page 1 377 notice -- Adjudicator interpreting enabling statute as conferring jurisdiction to determine whether discharge was in fact for cause -- Adjudicator holding employer breached duty of procedural fairness and ordering reinstatement -- Whether standard of reasonableness applicable to adjudicator's decision on statutory interpretation issue -- Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25, ss. 97(2.1), 100.1(5) -- Civil Service Act, S.N.B. 1984, c. C-5.1, s. 20. Administrative law -- Natural justice -- Procedural fairness -- Dismissal of public office holders -- Employee holding office "at pleasure" in provincial civil service dismissed without alleged cause with four months' pay in lieu of notice -- Employee not informed of reasons for termination or provided with opportunity to respond -- Whether employee entitled to procedural fairness -- Proper approach to dismissal of public employees. [page191] Summary: D was employed by the Department of Justice for the Province of New Brunswick. He held a position under the Civil Service Act and was an office holder "at pleasure". His probationary period was extended twice and the employer reprimanded him on three separate occasions during the course of his employment. On the third occasion, a formal letter of reprimand was sent to D warning him that his failure to improve his performance would result in further disciplinary action up to and including dismissal. While preparing for a meeting to discuss D's performance review the employer concluded that D was not right for the job. A formal letter of termination was delivered to D's lawyer the next day. Cause for the termination was explicitly not alleged and D was given four months' pay in lieu of notice. D commenced the grievance process under s. 100.1 of the Public Service Labour Relations Act ("PSLRA"), alleging that the reasons for the employer's dissatisfaction were not made known, that he did not receive a reasonable opportunity to respond to the concerns, that the employer's actions in terminating him were without notice, due process or procedural fairness, and that the length of the notice period was inadequate. The grievance was denied and then referred to adjudication. A preliminary issue of statutory interpretation arose as to whether, where dismissal was with notice or pay in lieu thereof, the adjudicator was authorized to determine the reasons underlying the province's decision to terminate. The adjudicator held that the referential incorporation of s. 97(2.1) of the PSLRA into s. 100.1(5) of that Act meant that he could determine whether D had been discharged or otherwise disciplined for cause. Ultimately, the adjudicator made no finding as to whether the discharge was or was not for cause. In his decision on the merits, he found that the termination letter effected termination with pay in lieu of notice and that the termination was not disciplinary. As D's employment was hybrid in character, the adjudicator held that D was entitled to and did not receive procedural fairness in the employer's decision to terminate his employment. He Page 2 378 declared that the termination was void ab initio and ordered D reinstated as of the date of dismissal, adding that in the event that his reinstatement order was quashed on judicial review, he would find the appropriate notice period to be eight months. On judicial review, the Court of Queen's Bench applied the correctness standard and quashed the adjudicator's preliminary decision, concluding that the adjudicator did not have jurisdiction to inquire into the [page192] reasons for the termination, and that his authority was limited to determining whether the notice period was reasonable. On the merits, the court found that D had received procedural fairness by virtue of the grievance hearing before the adjudicator. Concluding that the adjudicator's decision did not stand up to review on a reasonableness simpliciter standard, the court quashed the reinstatement order but upheld the adjudicator's provisional award of eight months' notice. The Court of Appeal held that the proper standard with respect to the interpretation of the adjudicator's authority under the PSLRA was reasonableness simpliciter, not correctness, and that the adjudicator's decision was unreasonable. It found that where the employer elects to dismiss with notice or pay in lieu of notice, s. 97(2.1) of the PSLRA does not apply and the employee may only grieve the length of the notice period. It agreed with the reviewing judge that D's right to procedural fairness had not been breached. Held: The appeal should be dismissed. Per McLachlin C.J. and Bastarache, LeBel, Fish and Abella JJ.: Despite its clear, stable constitutional foundations, the system of judicial review in Canada has proven to be difficult to implement. It is necessary to reconsider both the number and definitions of the various standards of review, and the analytical process employed to determine which standard applies in a given situation. Notwithstanding the theoretical differences between the standards of patent unreasonableness and reasonableness simpliciter, any actual difference between them in terms of their operation appears to be illusory. There ought to be only two standards of review: correctness and reasonableness. [para. 32] [para. 34] [para. 41] When applying the correctness standard in respect of jurisdictional and some other questions of law, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question and decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable. Reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process and with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law. It is a deferential standard which requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations [page193] that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system. [paras. 47-50] Page 3 379 An exhaustive analysis is not required in every case to determine the proper standard of review. Courts must first ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded to a decision maker with regard to a particular category of question. If the inquiry proves unfruitful, courts must analyze the factors making it possible to identify the proper standard of review. The existence of a privative clause is a strong indication of review pursuant to the reasonableness standard, since it is evidence of Parliament or a legislature's intent that an administrative decision maker be given greater deference and that interference by reviewing courts be minimized. It is not, however, determinative. Where the question is one of fact, discretion or policy, or where the legal issue is intertwined with and cannot be readily separated from the factual issue, deference will usually apply automatically. Deference will usually result where a decision maker is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity. While deference may also be warranted where an administrative decision maker has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context, a question of law that is of central importance to the legal system as a whole and outside the specialized area of expertise of the administrative decision maker will always attract a correctness standard. So will a true question of vires, a question regarding the jurisdictional lines between two or more competing specialized tribunals, and a constitutional question regarding the division of powers between Parliament and the provinces in the Constitution Act, 1867. [paras. 52-62] The standard of reasonableness applied on the issue of statutory interpretation. While the question of whether the combined effect of ss. 97(2.1) and 100.1 of the PSLRA permits the adjudicator to inquire into the employer's reason for dismissing an employee with notice or pay in lieu of notice is a question of law, it is not one that is of central importance to the legal system and outside the specialized expertise of the adjudicator, who was in fact interpreting his enabling statute. Furthermore, s. 101(1) of the PSLRA includes a full privative clause, and the nature of the regime favours the standard of reasonableness. Here, the adjudicator's [page194] interpretation of the law was unreasonable and his decision does not fall within the range of acceptable outcomes that are defensible in respect of the facts and the law. The employment relationship between the parties in this case was governed by private law. The combined effect of ss. 97(2.1) and 100.1 of the PSLRA cannot, on any reasonable interpretation, remove the employer's right, under the ordinary rules of contract, to discharge an employee with reasonable notice or pay in lieu thereof without asserting cause. By giving the PSLRA an interpretation that allowed him to inquire into the reasons for discharge, the adjudicator adopted a reasoning process that was fundamentally inconsistent with the employment contract and, thus, fatally flawed. [paras. 66-75] On the merits, D was not entitled to procedural fairness. Where a public employee is employed under a contract of employment, regardless of his or her status as a public office holder, the applicable law governing his or her dismissal is the law of contract, not general principles arising out of public law. Where a dismissal decision is properly within the public authority's powers and is taken pursuant to a contract of employment, there is no compelling public law purpose for imposing a duty of fairness. The principles expressed in Knight v. Indian Head School Division No. 19 in Page 4 380 relation to the general duty of fairness owed by public authorities when making decisions that affect the rights, privileges or interests of individuals are valid and important. However, to the extent that Knight ignored the important effect of a contract of employment, it should not be followed. In the case at bar, D was a contractual employee in addition to being a public office holder. Section 20 of the Civil Service Act provided that as a civil servant he could only be dismissed in accordance with the ordinary rules of contract. To consider a public law duty of fairness issue where such a duty exists falls squarely within the adjudicator's task to resolve a grievance. Where, as here, the relationship is contractual, it was unnecessary to consider any public law duty of procedural fairness. By imposing procedural fairness requirements on the respondent over and above its contractual obligations and ordering the full "reinstatement" of D, the adjudicator erred and his decision was therefore correctly struck down. [paras. 76-78] [para. 81] [para. 84] [para. 106] [para. 114] [para. 117] Per Binnie J.: The majority reasons for setting aside the adjudicator ruling were generally agreed with, however the call of the majority to re-evaluate the pragmatic and functional test and to re-assess "the structure and characteristics of the system of judicial review as a whole" and to develop a principled framework that is [page195] "more coherent and workable" invites a broader reappraisal. Judicial review is an idea that has lately become unduly burdened with law office metaphysics. Litigants find the court's attention focussed not on their complaints, or the government's response, but on lengthy and arcane discussions of something they are told is the pragmatic and functional test. The Court should at least (i) establish some presumptive rules and (ii) get the parties away from arguing about the tests and back to arguing about the substantive merits of their case. [paras. 119-122] [para. 133] [para. 145] The distinction between "patent unreasonableness" and reasonableness simpliciter is now to be abandoned. The repeated attempts to explain the difference between the two, was in hindsight, unproductive and distracting. However, a broad reappraisal of the system of judicial review should explicitly address not only administrative tribunals but issues related to other types of administrative bodies and statutory decision makers including mid-level bureaucrats and, for that matter, Ministers. If logic and language cannot capture the distinction in one context, it must equally be deficient elsewhere in the field of judicial review. [paras. 121-123] [paras. 134-135] [para. 140] It should be presumed that the standard of review of an administrative outcome on grounds of substance is reasonableness. In accordance with the ordinary rules of litigation, it should also be presumed that the decision under review is reasonable until the applicant shows otherwise. An applicant urging the non-deferential "correctness" standard should be required to demonstrate that the decision rests on an error in the determination of a legal issue not confided (or which constitutionally could not be confided) to the administrative decision maker to decide, whether in relation to jurisdiction or the general law. The logic of the constitutional limitation is obvious. If the limitation did not exist, the government could transfer the work of the courts to administrative bodies that are not independent of the executive and by statute immunize the decisions of these bodies from effective judicial review. Questions of law outside the administrative decision maker's Page 5 381 home statute and closely related rules or statutes which require his or her expertise should also be reviewable on a "correctness" standard whether or not it meets the majority's additional requirement that it be "of central importance to the legal system as a whole". The standard of correctness should also apply to the requirements of "procedural fairness", which will vary with the type of decision maker and the type of decision under review. Nobody should have his or her rights, [page196] interests or privileges adversely dealt with by an unjust process. [paras. 127-129] [paras. 146-147] On the other hand when the application for judicial review challenges the substantive outcome of an administrative action, the judge is invited to cross the line into second-guessing matters that lie within the function of the administrator. This is controversial because it is not immediately obvious why a judge's view of the reasonableness of an administrative policy or the exercise of an administrative discretion should be preferred to that of the administrator to whom Parliament or a legislature has allocated the decision, unless there is a full statutory right of appeal to the courts, or it is otherwise indicated in the conferring legislation that a "correctness" standard is intended. [para. 130] Abandonment of the distinction between reasonableness simpliciter and patent unreasonableness has important implications. The two different standards addressed not merely "the magnitude or the immediacy of the defect" in the administrative decision but recognized that different administrative decisions command different degrees of deference, depending on who is deciding what. [para. 135] "Contextualizing" a single standard of "reasonableness" review will shift the courtroom debate from choosing between two standards of reasonableness that each represented a different level of deference to a debate within a single standard of reasonableness to determine the appropriate level of deference. [para. 139] Thus a single "reasonableness" standard will now necessarily incorporate both the degree of deference owed to the decision maker formerly reflected in the distinction between patent unreasonableness and reasonableness simpliciter, and an assessment of the range of options reasonably open to the decision maker in the circumstances. The judge's role is to identify the outer boundaries of reasonable outcomes within which the administrative decision maker is free to choose. [para. 141] [para. 149] A single "reasonableness" standard is a big tent that will have to accommodate a lot of variables that inform and limit a court's review of the outcome of administrative decision making. "Contextualizing" the reasonableness standard will require a reviewing court to consider the precise nature and function of the decision maker including its expertise, the terms and objectives [page197] of the governing statute (or common law) conferring the power of decision including the existence of a privative clause and the nature of the issue being decided. Careful consideration of these matters will reveal the extent of the discretion conferred. In some cases the court will have to recognize that the decision maker was required to strike a proper balance (or achieve proportionality) between the adverse impact of a decision on the rights and interests of the applicant Page 6 382 or others directly affected weighed against the public purpose which is sought to be advanced. In each case careful consideration will have to be given to the reasons given for the decision. This list of "contextual" considerations is non-exhaustive. A reviewing court ought to recognize throughout the exercise that fundamentally the "reasonableness" of the administrative outcome is an issue given to another forum to decide. [para. 144] [paras. 151-155] Per Deschamps, Charron and Rothstein JJ.: Any review starts with the identification of the questions at issue as questions of law, questions of fact or questions of mixed fact and law. In the adjudicative context, decisions on questions of fact, whether undergoing appellate review or administrative law review, always attract deference. When there is a privative clause, deference is owed to the administrative body that interprets the legal rules it was created to interpret and apply. If the body oversteps its delegated powers, if it is asked to interpret laws in respect of which it does not have expertise or if Parliament or a legislature has provided for a statutory right of review, deference is not owed to the decision maker. Finally, when considering a question of mixed fact and law, a reviewing court should show an adjudicator the same deference as an appeal court would show a lower court. [paras. 158-164] Here, the employer's common law right to dismiss without cause was the starting point of the analysis. Since the adjudicator does not have specific expertise in interpreting the common law, the reviewing court can proceed to its own interpretation of the applicable rules and determine whether the adjudicator could enquire into the cause of the dismissal. The applicable standard of review is correctness. The distinction between the common law rules of employment and the statutory rules applicable to a unionized employee is essential if s. 97(2.1) of the PSLRA is to be applied mutatis mutandis to the case of a non-unionized employee as required by s. 100.1(5) of the PSLRA. The adjudicator's failure to inform himself of this crucial difference led him to look for a cause for the dismissal, which was not relevant. Even if deference had been owed to the adjudicator, his interpretation could not have stood. Employment security is so fundamental to an employment relationship [page198] that it could not have been granted by the legislature by providing only that the PSLRA was to apply mutatis mutandis to non-unionized employees. [paras. 168-171] Cases Cited By Bastarache and LeBel JJ. Referred to: Chalmers (Dr. Everett) Hospital v. Mills (1989), 102 N.B.R. (2d) 1; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Alberta Union of Provincial Employees v. Lethbridge Community College, [2004] 1 S.C.R. 727, 2004 SCC 28; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Executors of the Woodward Estate v. Minister of Finance, [1973] S.C.R. 120; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1; Mount Sinai Hospital Center v. Quebec Page 7 383 (Minister of Health and Social Services), [2001] 2 S.C.R. 281, 2001 SCC 41; C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29; Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710, 2002 SCC 86; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Council of Canadians with Disabilities v. Via Rail Canada Inc., [2007] 1 S.C.R. 650, 2007 SCC 15; Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609, 2004 SCC 23; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487; McLeod v. Egan, [1975] 1 S.C.R. 517; Cartaway Resources Corp. (Re), [2004] 1 S.C.R. 672, 2004 SCC 26; Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322; Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54; United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), [2004] 1 S.C.R. 485, 2004 SCC 19; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14; Quebec (Commission des [page199] droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185, 2004 SCC 39; Canada Safeway Ltd. v. RWDSU, Local 454, [1998] 1 S.C.R. 1079; Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11; Ridge v. Baldwin, [1963] 2 All E.R. 66; Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643; Reglin v. Creston (Town) (2004), 34 C.C.E.L. (3d) 123, 2004 BCSC 790; Gismondi v. Toronto (City) (2003), 64 O.R. (3d) 688; Seshia v. Health Sciences Centre (2001), 160 Man. R. (2d) 41, 2001 MBCA 151; Rosen v. Saskatoon District Health Board (2001), 202 D.L.R. (4th) 35, 2001 SKCA 83; Hanis v. Teevan (1998), 111 O.A.C. 91; Gerrard v. Sackville (Town) (1992), 124 N.B.R. (2d) 70; Malloch v. Aberdeen Corp., [1971] 2 All E.R. 1278; Hughes v. Moncton (City) (1990), 111 N.B.R. (2d) 184, aff'd (1991), 118 N.B.R. (2d) 306; Rosen v. Saskatoon District Health Board, [2000] 4 W.W.R. 606, 2000 SKQB 40; Wells v. Newfoundland, [1999] 3 S.C.R. 199; School District No. 5 (Southeast Kootenay) and B.C.T.F. (Yellowaga) (Re) (2000), 94 L.A.C. (4th) 56; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701. By Binnie J. Referred to:Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Cooper v. Wandsworth Board of Works (1863), 14 C.B. (N.S.) 180, 143 E.R. 414; Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, 2001 SCC 52; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Associated Provincial Picture Houses Ltd. v. Wednesbury Corp., [1947] 2 All E.R. 680; Baker v. Page 8 384 Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, 2001 SCC 41; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631; Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1; Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735; Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322; Law Society of [page200] New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11; C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29; Roncarelli v. Duplessis, [1959] S.C.R. 121. By Deschamps J. Referred to:H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63. Statutes and Regulations Cited Civil Service Act, S.N.B. 1984, c. C-5.1, s. 20. Constitution Act, 1867, ss. 96 to 101. Employment Standards Act, S.N.B. 1982, c. E-7.2. Extradition Act, R.S.C. 1985, c. E-23. Human Rights Act, R.S.N.B. 1973, c. H-11. Interpretation Act, R.S.C. 1985, c. I-21, s. 23(1). Interpretation Act, R.S.N.B. 1973, c. I-13, s. 20. Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25, ss. 92(1), 97, 97(2.1) [ad. 1990, c. 30, s. 35], 100.1 [idem, s. 40], 101(1) [idem, s. 41], (2) [idem]. Authors Cited Black's Law Dictionary, 8th ed. St. Paul, Minn.: West, 2004, "pleasure appointment". Brown, Donald J. M., and John M. Evans. Judicial Review of Administrative Action in Canada. Toronto: Canvasback, 1998 (loose-leaf updated July 2007). Cromwell, Thomas A. "Appellate Review: Policy and Pragmatism". In 2006 Pitblado Lectures, Appellate Courts: Policy, Law and Practice. Winnipeg: Fort Garry, 2006, V-1. Page 9 385 de Smith, Stanley A. Judicial Review of Administrative Action, 5th ed. By Lord Woolf and Jeffrey Jowell. London: Sweet & Maxwell, 1995. Dyzenhaus, David. "The Politics of Deference: Judicial Review and Democracy", in Michael Taggart, ed., The Province of Administrative Law. Oxford: Hart Publishing, 1997, 279. England, Geoff. Employment Law in Canada, 4th ed. Markham, Ont.: LexisNexis Butterworths, 2005 (loose-leaf updated March 2007, release 10). Hogg, Peter W., and Patrick J. Monahan. Liability of the Crown, 3rd ed. Scarborough, Ont.: Carswell, 2000. [page201] Mullan, David J. Administrative Law. Toronto: Irwin Law, 2001. Mullan, David J. "Recent Developments in Standard of Review", in Taking the Tribunal to Court: A Practical Guide for Administrative Law Practitioners. Canadian Bar Association (Ontario), October 20, 2000. Mullan, David J. "Establishing the Standard of Review: The Struggle for Complexity?" (2004), 17 C.J.A.L.P. 59. Sossin, Lorne, and Colleen M. Flood, "The Contextual Turn: Iacobucci's Legacy and the Standard of Review in Administrative Law" (2007), 57 U.T.L.J. 581. Wade, Sir William. Administrative Law, 8th ed. by Sir William Wade and Christopher Forsyth. New York: Oxford University Press, 2000. History and Disposition: APPEAL from a judgment of the New Brunswick Court of Appeal (Turnbull, Daigle and Robertson JJ.A.) (2006), 297 N.B.R. (2d) 151, 265 D.L.R. (4th) 609, 44 Admin. L.R. (4th) 92, 48 C.C.E.L. (3d) 196, 2006 CLLC para. 220-030, [2006] N.B.J. No. 118 (QL), 2006 CarswellNB 155, 2006 NBCA 27, affirming a judgment of Rideout J. (2005), 293 N.B.R. (2d) 5, 43 C.C.E.L. (3d) 205, [2005] N.B.J. No. 327 (QL), 2005 CarswellNB 444, 2005 NBQB 270, quashing a preliminary ruling and quashing in part an award made by an adjudicator. Appeal dismissed. Counsel: J. Gordon Petrie, Q.C., and Clarence L. Bennett, for the appellant. C. Clyde Spinney, Q.C., and Keith P. Mullin, for the respondent. Page 10 386 The judgment of McLachlin C.J. and Bastarache, LeBel, Fish and Abella JJ. was delivered by BASTARACHE and LeBEL JJ.:-- I. Introduction 1 This appeal calls on the Court to consider, once again, the troubling question of the approach to be taken in judicial review of decisions of administrative tribunals. The recent history of judicial review in Canada has been marked by ebbs and flows of deference, confounding tests and new words for old problems, but no solutions that provide real guidance for litigants, counsel, administrative decision [page202] makers or judicial review judges. The time has arrived for a reassessment of the question. A. Facts 2 The appellant, David Dunsmuir, was employed by the Department of Justice for the Province of New Brunswick. His employment began on February 25, 2002, as a Legal Officer in the Fredericton Court Services Branch. The appellant was placed on an initial six-month probationary term. On March 14, 2002, by Order-in-Council, he was appointed to the offices of Clerk of the Court of Queen's Bench, Trial Division, Administrator of the Court of Queen's Bench, Family Division, and Clerk of the Probate Court of New Brunswick, all for the Judicial District of Fredericton. 3 The employment relationship was not perfect. The appellant's probationary period was extended twice, to the maximum 12 months. At the end of each probationary period, the appellant was given a performance review. The first such review, which occurred in August 2002, identified four specific areas for improvement. The second review, three months later, cited the same four areas for development, but noted improvements in two. At the end of the third probationary period, the Regional Director of Court Services noted that the appellant had met all expectations and his employment was continued on a permanent basis. 4 The employer reprimanded the appellant on three separate occasions during the course of his employment. The first incident occurred in July 2002. The appellant had sent an email to the Chief Justice of the Court of Queen's Bench objecting to a request that had been made by the judge of the Fredericton Judicial District for the preparation of a practice directive. The Regional Director issued a reprimand letter to the appellant, explaining that the means he had used to raise his concerns were inappropriate and exhibited serious error in judgment. In the event that a similar concern arose in the future, he was directed to discuss the matter [page203] first with the Registrar or the Regional Director. The letter warned that failure to comply would lead to additional disciplinary measures and, if necessary, to dismissal. Page 11 387 5 A second disciplinary measure occurred when, in April 2004, it came to the attention of the Assistant Deputy Minister that the appellant was being advertised as a lecturer at legal seminars offered in the private sector. The appellant had inquired previously into the possibility of doing legal work outside his employment. In February 2004, the Assistant Deputy Minister had informed him that lawyers in the public service should not practise law in the private sector. A month later, the appellant wrote a letter to the Law Society of New Brunswick stating that his participation as a non-remunerated lecturer had been vetted by his employer, who had voiced no objection. On June 3, 2004, the Assistant Deputy Minister issued to the appellant written notice of a one-day suspension with pay regarding the incident. The letter also referred to issues regarding the appellant's work performance, including complaints from unnamed staff, lawyers and members of the public regarding his difficulties with timeliness and organization. This second letter concluded with the statement that "[f]uture occurrences of this nature and failure to develop more efficient organized work habits will result in disciplinary action up to and including dismissal." 6 Third, on July 21, 2004, the Regional Director wrote a formal letter of reprimand to the appellant regarding three alleged incidents relating to his job performance. This letter, too, concluded with a warning that the appellant's failure to improve his organization and timeliness would result in further disciplinary action up to and including dismissal. The appellant responded to the letter by informing the Regional Director that he would be seeking legal advice and, until that time, would not meet with her to discuss the matter further. 7 A review of the appellant's work performance had been due in April 2004 but did not take place. The appellant met with the Regional Director on a [page204] couple of occasions to discuss backlogs and organizational problems. Complaints were relayed to her by staff but they were not documented and it is unknown how many complaints there had been. The Regional Director notified the appellant on August 11, 2004, that his performance review was overdue and would occur by August 20. A meeting had been arranged for August 19 between the appellant, the Regional Director, the Assistant Deputy Minister and counsel for the appellant and the employer. While preparing for that meeting, the Regional Director and the Assistant Deputy Minister concluded that the appellant was not right for the job. The scheduled meeting was cancelled and a termination notice was faxed to the appellant. A formal letter of termination from the Deputy Minister was delivered to the appellant's lawyer the next day. The letter terminated the appellant's employment with the Province of New Brunswick, effective December 31, 2004. It read, in relevant part: I regret to advise you that I have come to the conclusion that your particular skill set does not meet the needs of your employer in your current position, and that it is advisable to terminate your employment on reasonable notice, pursuant to section 20 of the Civil Service Act. You are accordingly hereby advised that your employment with the Province of New Brunswick will Page 12 388 terminate on December 31, 2004. Cause for termination is not alleged. To aid in your search for other employment, you are not required to report to work during the notice period and your salary will be continued until the date indicated or for such shorter period as you require either to find a job with equivalent remuneration, or you commence self-employment. ... In the circumstances, we would request that you avoid returning to the workplace until your departure has been announced to staff, and until you have returned your keys and government identification to your supervisor, Ms. Laundry as well as any other property of the employer still in your possession ... . 8 On February 3, 2005, the appellant was removed from his statutory offices by order of the Lieutenant-Governor in Council. [page205] 9 The appellant commenced the grievance process under s. 100.1 of the Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25 ("PSLRA"; see Appendix), by letter to the Deputy Minister on September 1, 2004. That provision grants non-unionized employees of the provincial public service the right to file a grievance with respect to a "discharge, suspension or a financial penalty" (s. 100.1(2)). The appellant asserted several grounds of complaint in his grievance letter, in particular, that the reasons for the employer's dissatisfaction were not made known; that he did not receive a reasonable opportunity to respond to the employer's concerns; that the employer's actions in terminating him were without notice, due process or procedural fairness; and that the length of the notice period was inadequate. The grievance was denied. The appellant then gave notice that he would refer the grievance to adjudication under the PSLRA. The adjudicator was selected by agreement of the parties and appointed by the Labour and Employment Board . 10 The adjudication hearing was convened and counsel for the appellant produced as evidence a volume of 169 documents. Counsel for the respondent objected to the inclusion of almost half of the documents. The objection was made on the ground that the documents were irrelevant since the appellant's dismissal was not disciplinary but rather was a termination on reasonable notice. The preliminary issue therefore arose of whether, where dismissal was with notice or pay in lieu thereof, the adjudicator was authorized to assess the reasons underlying the province's decision to terminate. Page 13 389 Following his preliminary ruling on that issue, the adjudicator heard and decided the merits of the grievance. B. Decisions of the Adjudicator (1) Preliminary Ruling (January 10, 2005) 11 The adjudicator began his preliminary ruling by considering s. 97(2.1) of the PSLRA. He reasoned that because the appellant was not included in a bargaining unit and there was no collective agreement or arbitral award, the section ought to be [page206] interpreted to mean that where an adjudicator determines that an employee has been discharged for cause, the adjudicator may substitute another penalty for the discharge as seems just and reasonable in the circumstances. The adjudicator considered and relied on the decision of the New Brunswick Court of Appeal in Chalmers (Dr. Everett) Hospital v. Mills (1989), 102 N.B.R. (2d) 1. 12 Turning to s. 100.1 of the PSLRA, he noted the referential incorporation of s. 97 in s. 100.1(5). He stated that such incorporation "necessarily means that an adjudicator has jurisdiction to make the determination described in s. 97(2.1), i.e. that an employee has been discharged or otherwise disciplined for cause" (p. 5). The adjudicator noted that an employee to whom s. 20 of the Civil Service Act, S.N.B. 1984, c. C-5.1 (see Appendix), applies may be discharged for cause, with reasonable notice or with pay in lieu of reasonable notice. He concluded by holding that an employer cannot avoid an inquiry into its real reasons for dismissing an employee by stating that cause is not alleged. Rather, a grieving employee is entitled to an adjudication as to whether a discharge purportedly with notice or pay in lieu thereof was in fact for cause. He therefore held that he had jurisdiction to make such a determination. (2) Ruling on the Merits (February 16, 2005) 13 In his decision on the merits, released shortly thereafter, the adjudicator found that the termination letter of August 19 effected termination with pay in lieu of notice. The employer did not allege cause. Inquiring into the reasons for dismissal the adjudicator was satisfied that, on his view of the evidence, the termination was not disciplinary. Rather, the decision to terminate was based on the employer's concerns about the appellant's work performance and his suitability for the positions he held. 14 The adjudicator then considered the appellant's claim that he was dismissed without procedural fairness in that the employer did not inform him of the reasons for its dissatisfaction and did not give him an opportunity to respond. The adjudicator [page207] placed some responsibility on the employer for cancelling the performance review scheduled for August 19. He also opined that the employer was not so much dissatisfied with the appellant's quality of work as with his lack of organization. Page 14 390 15 The adjudicator's decision relied on Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, for the relevant legal principles regarding the right of "at pleasure" office holders to procedural fairness. As the appellant's employment was "hybrid in character" (para. 53) he was both a Legal Officer under the Civil Service Act and, as Clerk, an office holder "at pleasure" the adjudicator held that the appellant was entitled to procedural fairness in the employer's decision to terminate his employment. He declared that the termination was void ab initio and ordered the appellant reinstated as of August 19, 2004, the date of dismissal. 16 The adjudicator added that in the event that his reinstatement order was quashed on judicial review, he would find the appropriate notice period to be eight months. C. Judicial History (1) Court of Queen's Bench of New Brunswick (2005), 293 N.B.R. (2d) 5, 2005 NBQB 270 17 The Province of New Brunswick applied for judicial review of the adjudicator's decision on numerous grounds. In particular, it argued that the adjudicator had exceeded his jurisdiction in his preliminary ruling by holding that he was authorized to determine whether the termination was in fact for cause. The Province further argued that the adjudicator had acted incorrectly or unreasonably in deciding the procedural fairness issue. The application was heard by Rideout J. 18 The reviewing judge applied a pragmatic and functional analysis, considering the presence of a full privative clause in the PSLRA, the [page208] relative expertise of adjudicators appointed under the PSLRA, the purposes of ss. 97(2.1) and 100.1 of the PSLRA as well as s. 20 of the Civil Service Act, and the nature of the question as one of statutory interpretation. He concluded that the correctness standard of review applied and that the court need not show curial deference to the decision of an adjudicator regarding the interpretation of those statutory provisions. 19 Regarding the preliminary ruling, the reviewing judge noted that the appellant was employed "at pleasure" and fell under s. 20 of the Civil Service Act. In his view, the adjudicator had overlooked the effects of s. 20 and had mistakenly given ss. 97(2.1) and 100.1 of the PSLRA a substantive, rather than procedural, interpretation. Those sections are procedural in nature. They provide an employee with a right to grieve his or her dismissal and set out the steps that must be followed to pursue a grievance. The adjudicator is bound to apply the contractual provisions as they exist and has no authority to change those provisions. Thus, in cases in which s. 20 of the Civil Service Act applies, the adjudicator must apply the ordinary rules of contract. The reviewing judge held that the adjudicator had erred in removing the words "and the collective agreement or arbitral award does not contain a specific penalty for the infraction that resulted in the employee being discharged or otherwise disciplined" from s. 97(2.1). Those words limit s. 97(2.1) to employees who are not employed "at pleasure". In the view of the reviewing judge, the adjudicator did not have jurisdiction to inquire into the reasons for the termination. His authority was limited to Page 15 391 determining whether the notice period was reasonable. Having found that the adjudicator had exceeded his jurisdiction, the reviewing judge quashed his preliminary ruling. 20 With respect to the adjudicator's award on the merits, the reviewing judge commented that some aspects of the decision are factual in nature and should be reviewed on a patent unreasonableness standard, while other aspects involve questions [page209] of mixed fact and law which are subject to a reasonableness simpliciter standard. The reviewing judge agreed with the Province that the adjudicator's reasons do not stand up to a "somewhat probing examination" (para. 76). The reviewing judge held that the adjudicator's award of reinstatement could not stand as he was not empowered by the PSLRA to make Lieutenant-Governor in Council appointments. In addition, by concluding that the decision was void ab initio owing to a lack of procedural fairness, the adjudicator failed to consider the doctrine of adequate alternative remedy. The appellant received procedural fairness by virtue of the grievance hearing before the adjudicator. The adjudicator had provisionally increased the notice period to eight months that provided an adequate alternative remedy. Concluding that the adjudicator's decision did not stand up to review on a reasonableness simpliciter standard, the reviewing judge quashed the reinstatement order but upheld the adjudicator's provisional award of eight months' notice. (2) Court of Appeal of New Brunswick (2006), 297 N.B.R. (2d) 151, 2006 NBCA 27 21 The appellant appealed the decision of the reviewing judge. The Court of Appeal, Robertson J.A. writing, held that the proper standard with respect to the interpretation of the adjudicator's authority under the PSLRA was reasonableness simpliciter and that the reviewing judge had erred in adopting the correctness standard. The court reached that conclusion by proceeding through a pragmatic and functional analysis, placing particular emphasis on the presence of a full privative clause in the PSLRA and the relative expertise of an adjudicator in the labour relations and employment context. The court also relied on the decision of this Court in Alberta Union of Provincial Employees v. Lethbridge Community College, [2004] 1 S.C.R. 727, 2004 SCC 28. However, the court noted that the adjudicator's interpretation of the Mills decision warranted no deference and that "correctness is the proper review standard when it comes to the interpretation and application of caselaw" (para. 17). [page210] 22 Applying the reasonableness simpliciter standard, the court held that the adjudicator's decision was unreasonable. Robertson J.A. began by considering s. 20 of the Civil Service Act and noted that under the ordinary rules of contract, an employer holds the right to dismiss an employee with cause or with reasonable notice or with pay in lieu of notice. Section 20 of the Civil Service Act limits the Crown's common law right to dismiss its employees without cause or notice. Robertson J.A. Page 16 392 reasoned that s. 97(2.1) of the PSLRA applies in principle to non-unionized employees, but that it is only where an employee has been discharged or disciplined for cause that an adjudicator may substitute such other penalty as seems just and reasonable in the circumstances. Where the employer elects to dismiss with notice or pay in lieu of notice, however, s. 97(2.1) does not apply. In such circumstances, the employee may only grieve the length of the notice period. The only exception is where the employee alleges that the decision to terminate was based on a prohibited ground of discrimination. 23 On the issue of procedural fairness, the court found that the appellant exercised his right to grieve, and thus a finding that the duty of fairness had been breached was without legal foundation. The court dismissed the appeal. II. Issues 24 At issue, firstly is the approach to be taken in the judicial review of a decision of a particular adjudicative tribunal which was seized of a grievance filed by the appellant after his employment was terminated. This appeal gives us the opportunity to re-examine the foundations of judicial review and the standards of review applicable in various situations. 25 The second issue involves examining whether the appellant who held an office "at pleasure" in the civil service of New Brunswick, had the right to procedural fairness in the employer's decision to terminate him. On this occasion, we will reassess the rule that has found formal expression in Knight. [page211] 26 The two types of judicial review, on the merits and on the process, are therefore engaged in this case. Our review of the system will therefore be comprehensive, which is preferable since a holistic approach is needed when considering fundamental principles. III. Issue 1: Review of the Adjudicator's Statutory Interpretation Determination A. Judicial Review 27 As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially that constitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of Page 17 393 the matters delegated to administrative bodies by Parliament and legislatures. 28 By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. 29 Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined. A decision maker may not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, [page212] the decision maker transgresses the principle of the rule of law. Thus, when a reviewing court considers the scope of a decision-making power or the jurisdiction conferred by a statute, the standard of review analysis strives to determine what authority was intended to be given to the body in relation to the subject matter. This is done within the context of the courts' constitutional duty to ensure that public authorities do not overreach their lawful powers: Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220, at p. 234; also Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, at para. 21. 30 In addition to the role judicial review plays in upholding the rule of law, it also performs an important constitutional function in maintaining legislative supremacy. As noted by Justice Thomas Cromwell, "the rule of law is affirmed by assuring that the courts have the final say on the jurisdictional limits of a tribunal's authority; second, legislative supremacy is affirmed by adopting the principle that the concept of jurisdiction should be narrowly circumscribed and defined according to the intent of the legislature in a contextual and purposeful way; third, legislative supremacy is affirmed and the court-centric conception of the rule of law is reined in by acknowledging that the courts do not have a monopoly on deciding all questions of law" ("Appellate Review: Policy and Pragmatism", in 2006 Isaac Pitblado Lectures, Appellate Courts: Policy, Law and Practice, V-1, at p. V-12). In essence, the rule of law is maintained because the courts have the last word on jurisdiction, and legislative supremacy is assured because determining the applicable standard of review is accomplished by establishing legislative intent. 31 The legislative branch of government cannot remove the judiciary's power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect (Executors of the Woodward Estate v. Minister of Finance, [1973] S.C.R. 120, at p. 127 [page213]). The inherent power of superior courts to review administrative action and ensure that it does not exceed its jurisdiction stems from the judicature provisions in ss. 96 to 101 of the Constitution Act, 1867: Crevier. As noted by Beetz J. in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at p. 1090, "[t]he role of the superior courts in maintaining the rule of law is so important that it is given constitutional protection". In short, judicial review is Page 18 394 constitutionally guaranteed in Canada, particularly with regard to the definition and enforcement of jurisdictional limits. As Laskin C.J. explained in Crevier: Where ... questions of law have been specifically covered in a privative enactment, this Court, as in Farrah, has not hesitated to recognize this limitation on judicial review as serving the interests of an express legislative policy to protect decisions of adjudicative agencies from external correction. Thus, it has, in my opinion, balanced the competing interests of a provincial Legislature in its enactment of substantively valid legislation and of the courts as ultimate interpreters of the British North America Act and s. 96 thereof. The same considerations do not, however, apply to issues of jurisdiction which are not far removed from issues of constitutionality. It cannot be left to a provincial statutory tribunal, in the face of s. 96, to determine the limits of its own jurisdiction without appeal or review. [pp. 237-38] See also D. J. Mullan, Administrative Law (2001), at p. 50. 32 Despite the clear, stable constitutional foundations of the system of judicial review, the operation of judicial review in Canada has been in a constant state of evolution over the years, as courts have attempted to devise approaches to judicial review that are both theoretically sound and effective in practice. Despite efforts to refine and clarify it, the present system has proven to be difficult to implement. The time has arrived to re-examine the Canadian approach to judicial review of administrative decisions and develop a principled framework that is more coherent and workable. [page214] 33 Although the instant appeal deals with the particular problem of judicial review of the decisions of an adjudicative tribunal, these reasons will address first and foremost the structure and characteristics of the system of judicial review as a whole. In the wake of Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, 2001 SCC 41, and C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29, it has become apparent that the present system must be simplified. The comments of LeBel J. in Chamberlain v. Surrey School District No. 36, [2002] 4 S.C.R. 710, 2002 SCC 86, at paras. 190 and 195, questioning the applicability of the "pragmatic and functional approach" to the decisions and actions of all kinds of administrative actors, illustrated the need for change. B. Reconsidering the Standards of Judicial Review 34 The current approach to judicial review involves three standards of review, which range from Page 19 395 correctness, where no deference is shown, to patent unreasonableness, which is most deferential to the decision maker, the standard of reasonableness simpliciter lying, theoretically, in the middle. In our view, it is necessary to reconsider both the number and definitions of the various standards of review, and the analytical process employed to determine which standard applies in a given situation. We conclude that there ought to be two standards of review correctness and reasonableness. 35 The existing system of judicial review has its roots in several landmark decisions beginning in the late 1970s in which this Court developed the theory of substantive review to be applied to determinations of law, and determinations of fact and of mixed law and fact made by administrative tribunals. In Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 ("CUPE") [page215], Dickson J. introduced the idea that, depending on the legal and administrative contexts, a specialized administrative tribunal with particular expertise, which has been given the protection of a privative clause, if acting within its jurisdiction, could provide an interpretation of its enabling legislation that would be allowed to stand unless "so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review" (p. 237). Prior to CUPE, judicial review followed the "preliminary question doctrine", which inquired into whether a tribunal had erred in determining the scope of its jurisdiction. By simply branding an issue as "jurisdictional", courts could replace a decision of the tribunal with one they preferred, often at the expense of a legislative intention that the matter lie in the hands of the administrative tribunal. CUPE marked a significant turning point in the approach of courts to judicial review, most notably in Dickson J.'s warning that courts "should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so" (p. 233). Dickson J.'s policy of judicial respect for administrative decision making marked the beginning of the modern era of Canadian administrative law. 36 CUPE did not do away with correctness review altogether and in Bibeault, the Court affirmed that there are still questions on which a tribunal must be correct. As Beetz J. explained, "the jurisdiction conferred on administrative tribunals and other bodies created by statute is limited, and ... such a tribunal cannot by a misinterpretation of an enactment assume a power not given to it by the legislator" (p. 1086). Bibeault introduced the concept of a "pragmatic and functional analysis" to determine the jurisdiction of a tribunal, abandoning the "preliminary question" theory. In arriving at the appropriate standard of review, courts were to consider a number of factors including the wording of the provision conferring jurisdiction on the tribunal, the purpose of the enabling statute, the reason for the existence of the tribunal, the expertise of its [page216] members, and the nature of the problem (p. 1088). The new approach would put "renewed emphasis on the superintending and reforming function of the superior courts" (p. 1090). The "pragmatic and functional analysis", as it came to be known, was later expanded to determine the appropriate degree of deference in respect of various forms of administrative decision making. 37 In Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, a third standard of review was introduced into Canadian administrative law. The legislative context of Page 20 396 that case, which provided a statutory right of appeal from the decision of a specialized tribunal, suggested that none of the existing standards was entirely satisfactory. As a result, the reasonableness simpliciter standard was introduced. It asks whether the tribunal's decision was reasonable. If so, the decision should stand; if not, it must fall. In Southam, Iacobucci J. described an unreasonable decision as one that "is not supported by any reasons that can stand up to a somewhat probing examination" (para. 56) and explained that the difference between patent unreasonableness and reasonableness simpliciter is the "immediacy" or "obviousness" of the defect in the tribunal's decision (para. 57). The defect will appear on the face of a patently unreasonable decision, but where the decision is merely unreasonable, it will take a searching review to find the defect. 38 The three standards of review have since remained in Canadian administrative law, the approach to determining the appropriate standard of review having been refined in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. 39 The operation of three standards of review has not been without practical and theoretical difficulties, neither has it been free of criticism. One major problem lies in distinguishing between the [page217] patent unreasonableness standard and the reasonableness simpliciter standard. The difficulty in distinguishing between those standards contributes to the problem of choosing the right standard of review. An even greater problem lies in the application of the patent unreasonableness standard, which at times seems to require parties to accept an unreasonable decision. 40 The definitions of the patent unreasonableness standard that arise from the case law tend to focus on the magnitude of the defect and on the immediacy of the defect (see Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63, at para. 78, per LeBel J.). Those two hallmarks of review under the patent unreasonableness standard have been used consistently in the jurisprudence to distinguish it from review under the standard of reasonableness simpliciter. As it had become clear that, after Southam, lower courts were struggling with the conceptual distinction between patent unreasonableness and reasonableness simpliciter, Iacobucci J., writing for the Court in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, attempted to bring some clarity to the issue. He explained the different operations of the two deferential standards as follows, at paras. 52-53: [A] patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective. A patently unreasonable decision has been described as "clearly irrational" or "evidently not in accordance with reason" ... . A decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand. A decision may be unreasonable without being patently unreasonable when Page 21 397 the defect in the decision is less obvious and might only be discovered after "significant searching or testing" (Southam, supra, at para. 57). Explaining the defect may require a detailed exposition to show that there are no lines of reasoning supporting the decision which could reasonably lead that tribunal to reach the decision it did. 41 As discussed by LeBel J. at length in Toronto (City) v. C.U.P.E., notwithstanding the increased [page218] clarity that Ryan brought to the issue and the theoretical differences between the standards of patent unreasonableness and reasonableness simpliciter, a review of the cases reveals that any actual difference between them in terms of their operation appears to be illusory (see also the comments of Abella J. in Council of Canadians with Disabilities v. Via Rail Canada Inc., [2007] 1 S.C.R. 650, 2007 SCC 15, at paras. 101-3). Indeed, even this Court divided when attempting to determine whether a particular decision was "patently unreasonable", although this should have been self-evident under the existing test (see C.U.P.E. v. Ontario (Minister of Labour)). This result is explained by the fact that both standards are based on the idea that there might be multiple valid interpretations of a statutory provision or answers to a legal dispute and that courts ought not to interfere where the tribunal's decision is rationally supported. Looking to either the magnitude or the immediacy of the defect in the tribunal's decision provides no meaningful way in practice of distinguishing between a patently unreasonable and an unreasonable decision. As Mullan has explained: [T]o maintain a position that it is only the "clearly irrational" that will cross the threshold of patent unreasonableness while irrationality simpliciter will not is to make a nonsense of the law. Attaching the adjective "clearly" to irrational is surely a tautology. Like "uniqueness", irrationality either exists or it does not. There cannot be shades of irrationality. See D. J. Mullan, "Recent Developments in Standard of Review", in Canadian Bar Association (Ontario), Taking the Tribunal to Court: A Practical Guide for Administrative Law Practitioners (2000), at p. 25. 42 Moreover, even if one could conceive of a situation in which a clearly or highly irrational decision were distinguishable from a merely irrational decision, it would be unpalatable to require parties to accept an irrational decision simply because, on a deferential standard, the irrationality of the decision is not clear enough. It is also inconsistent with the rule of law to retain an irrational decision. As [page219] LeBel J. explained in his concurring reasons in Toronto (City) v. C.U.P.E., at para. 108: In the end, the essential question remains the same under both standards: was the decision of the adjudicator taken in accordance with reason? Where the answer is no, for instance because the legislation in question cannot rationally support the adjudicator's interpretation, the error will invalidate the decision, Page 22 398 regardless of whether the standard applied is reasonableness simpliciter or patent unreasonableness ... . See also Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609, 2004 SCC 23, at paras. 40-41, per LeBel J. C. Two Standards of Review 43 The Court has moved from a highly formalistic, artificial "jurisdiction" test that could easily be manipulated, to a highly contextual "functional" test that provides great flexibility but little real on-the-ground guidance, and offers too many standards of review. What is needed is a test that offers guidance, is not formalistic or artificial, and permits review where justice requires it, but not otherwise. A simpler test is needed. (1) Defining the Concepts of Reasonabless and Correctness 44 As explained above, the patent unreasonableness standard was developed many years prior to the introduction of the reasonableness simpliciter standard in Southam. The intermediate standard was developed to respond to what the Court viewed as problems in the operation of judicial review in Canada, particularly the perceived all-or-nothing approach to deference, and in order to create a more finely calibrated system of judicial review (see also L. Sossin and C. M. Flood, "The Contextual Turn: Iacobucci's Legacy and the Standard of Review in Administrative Law" (2007), 57 U.T.L.J. 581). However, the analytical problems that arise in trying to apply the different standards undercut any conceptual usefulness created by the inherently [page220] greater flexibility of having multiple standards of review. Though we are of the view that the three-standard model is too difficult to apply to justify its retention, now, several years after Southam, we believe that it would be a step backwards to simply remove the reasonableness simpliciter standard and revert to pre-Southam law. As we see it, the problems that Southam attempted to remedy with the introduction of the intermediate standard are best addressed not by three standards of review, but by two standards, defined appropriately. 45 We therefore conclude that the two variants of reasonableness review should be collapsed into a single form of "reasonableness" review. The result is a system of judicial review comprising two standards correctness and reasonableness. But the revised system cannot be expected to be simpler and more workable unless the concepts it employs are clearly defined. 46 What does this revised reasonableness standard mean? Reasonableness is one of the most widely used and yet most complex legal concepts. In any area of the law we turn our attention to, we find ourselves dealing with the reasonable, reasonableness or rationality. But what is a reasonable decision? How are reviewing courts to identify an unreasonable decision in the context of administrative law and, especially, of judicial review? 47 Reasonableness is a deferential standard animated by the principle that underlies the Page 23 399 development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of [page221] justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. 48 The move towards a single reasonableness standard does not pave the way for a more intrusive review by courts and does not represent a return to pre-Southam formalism. In this respect, the concept of deference, so central to judicial review in administrative law, has perhaps been insufficiently explored in the case law. What does deference mean in this context? Deference is both an attitude of the court and a requirement of the law of judicial review. It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. The notion of deference "is rooted in part in a respect for governmental decisions to create administrative bodies with delegated powers" (Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at p. 596, per L'Heureux-Dubé J., dissenting). We agree with David Dyzenhaus where he states that the concept of "deference as respect" requires of the courts "not submission but a respectful attention to the reasons offered or which could be offered in support of a decision": "The Politics of Deference: Judicial Review and Democracy", in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286 (quoted with approval in Baker, at para. 65, per L'Heureux-Dubé J.; Ryan, at para. 49). 49 Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers. As Mullan explains, a policy of deference "recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree [page222] of expertise or field sensitivity to the imperatives and nuances of the legislative regime": D. J. Mullan, "Establishing the Standard of Review: The Struggle for Complexity?" (2004), 17 C.J.A.L.P. 59, at p. 93. In short, deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system. 50 As important as it is that courts have a proper understanding of reasonableness review as a deferential standard, it is also without question that the standard of correctness must be maintained in respect of jurisdictional and some other questions of law. This promotes just decisions and avoids Page 24 400 inconsistent and unauthorized application of law. When applying the correctness standard, a reviewing court will not show deference to the decision maker's reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal's decision was correct. (2) Determining the Appropriate Standard of Review 51 Having dealt with the nature of the standards of review, we now turn our attention to the method for selecting the appropriate standard in individual cases. As we will now demonstrate, questions of fact, discretion and policy as well as questions where the legal issues cannot be easily separated from the factual issues generally attract a standard of reasonableness while many legal issues attract a standard of correctness. Some legal issues, however, attract the more deferential standard of reasonableness. [page223] 52 The existence of a privative or preclusive clause gives rise to a strong indication of review pursuant to the reasonableness standard. This conclusion is appropriate because a privative clause is evidence of Parliament or a legislature's intent that an administrative decision maker be given greater deference and that interference by reviewing courts be minimized. This does not mean, however, that the presence of a privative clause is determinative. The rule of law requires that the constitutional role of superior courts be preserved and, as indicated above, neither Parliament nor any legislature can completely remove the courts' power to review the actions and decisions of administrative bodies. This power is constitutionally protected. Judicial review is necessary to ensure that the privative clause is read in its appropriate statutory context and that administrative bodies do not exceed their jurisdiction. 53 Where the question is one of fact, discretion or policy, deference will usually apply automatically (Mossop, at pp. 599-600; Dr. Q, at para. 29; Suresh, at paras. 29-30). We believe that the same standard must apply to the review of questions where the legal and factual issues are intertwined with and cannot be readily separated. 54 Guidance with regard to the questions that will be reviewed on a reasonableness standard can be found in the existing case law. Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity: Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157, at para. 48; Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, at para. 39. Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a Page 25 401 specific statutory context: Toronto (City) v. C.U.P.E., at para. 72. Adjudication in labour law remains a good example of the relevance of this approach. The case law has moved away considerably from the strict position evidenced in McLeod v. Egan, [1975] 1 S.C.R. 517, where it was held that an administrative decision [page224] maker will always risk having its interpretation of an external statute set aside upon judicial review. 55 A consideration of the following factors will lead to the conclusion that the decision maker should be given deference and a reasonableness test applied: - A privative clause: this is a statutory direction from Parliament or a legislature indicating the need for deference. - A discrete and special administrative regime in which the decision maker has special expertise (labour relations for instance). - The nature of the question of law. A question of law that is of "central importance to the legal system ... and outside the ... specialized area of expertise" of the administrative decision maker will always attract a correctness standard (Toronto (City) v. C.U.P.E., at para. 62). On the other hand, a question of law that does not rise to this level may be compatible with a reasonableness standard where the two above factors so indicate. 56 If these factors, considered together, point to a standard of reasonableness, the decision maker's decision must be approached with deference in the sense of respect discussed earlier in these reasons. There is nothing unprincipled in the fact that some questions of law will be decided on the basis of reasonableness. It simply means giving the adjudicator's decision appropriate deference in deciding whether a decision should be upheld, bearing in mind the factors indicated. 57 An exhaustive review is not required in every case to determine the proper standard of review. Here again, existing jurisprudence may be helpful in identifying some of the questions that generally fall to be determined according to the correctness [page225] standard (Cartaway Resources Corp. (Re), [2004] 1 S.C.R. 672, 2004 SCC 26). This simply means that the analysis required is already deemed to have been performed and need not be repeated. 58 For example, correctness review has been found to apply to constitutional questions regarding the division of powers between Parliament and the provinces in the Constitution Act, 1867: Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322. Such questions, as well as other constitutional issues, are necessarily subject to correctness review because of the unique role of s. 96 courts as interpreters of the Constitution: Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504, 2003 SCC 54; Mullan, Administrative Law, at p. 60. 59 Administrative bodies must also be correct in their determinations of true questions of jurisdiction or vires. We mention true questions of vires to distance ourselves from the extended definitions adopted before CUPE. It is important here to take a robust view of jurisdiction. We neither wish nor intend to return to the jurisdiction/preliminary question doctrine that plagued the Page 26 402 jurisprudence in this area for many years. "Jurisdiction" is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction: D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at pp. 14-3 to 14-6. An example may be found in United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City), [2004] 1 S.C.R. 485, 2004 SCC 19. In that case, the issue was whether the City of Calgary was authorized under the relevant municipal acts to enact bylaws limiting the number of taxi plate licences (para. 5, per Bastarache J.). That case involved the decision-making powers of a municipality [page226] and exemplifies a true question of jurisdiction or vires. These questions will be narrow. We reiterate the caution of Dickson J. in CUPE that reviewing judges must not brand as jurisdictional issues that are doubtfully so. 60 As mentioned earlier, courts must also continue to substitute their own view of the correct answer where the question at issue is one of general law "that is both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise" (Toronto (City) v. C.U.P.E., at para. 62, per LeBel J.). Because of their impact on the administration of justice as a whole, such questions require uniform and consistent answers. Such was the case in Toronto (City) v. C.U.P.E., which dealt with complex common law rules and conflicting jurisprudence on the doctrines of res judicata and abuse of process issues that are at the heart of the administration of justice (see para. 15, per Arbour J.). 61 Questions regarding the jurisdictional lines between two or more competing specialized tribunals have also been subject to review on a correctness basis: Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185, 2004 SCC 39. 62 In summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. [page227] 63 The existing approach to determining the appropriate standard of review has commonly been referred to as "pragmatic and functional". That name is unimportant. Reviewing courts must not get fixated on the label at the expense of a proper understanding of what the inquiry actually entails. Page 27 403 Because the phrase "pragmatic and functional approach" may have misguided courts in the past, we prefer to refer simply to the "standard of review analysis" in the future. 64 The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative in the application of the reasonableness standard in a specific case. D. Application 65 Returning to the instant appeal and bearing in mind the foregoing discussion, we must determine the standard of review applicable to the adjudicator's interpretation of the PSLRA, in particular ss. 97(2.1) and 100.1, and s. 20 of the Civil Service Act. That standard of review must then be applied to the adjudicator's decision. In order to determine the applicable standard, we will now examine the factors relevant to the standard of review analysis. (1) Proper Standard of Review on the Statutory Interpretation Issue 66 The specific question on this front is whether the combined effect of s. 97(2.1) and s. 100.1 of the PSLRA permits the adjudicator to inquire into the employer's reason for dismissing an employee with notice or pay in lieu of notice. This is a question of law. The question to be answered is therefore whether in light of the privative clause, the regime under which the adjudicator acted, and the nature of the question of law involved, a standard of correctness should apply. [page228] 67 The adjudicator was appointed and empowered under the PSLRA; s. 101(1) of that statute contains a full privative clause, stating in no uncertain terms that "every order, award, direction, decision, declaration or ruling of ... an adjudicator is final and shall not be questioned or reviewed in any court". Section 101(2) adds that "[n]o order shall be made or process entered, and no proceedings shall be taken in any court, whether by way of injunction, judicial review, or otherwise, to question, review, prohibit or restrain ... an adjudicator in any of its or his proceedings." The inclusion of a full privative clause in the PSLRA gives rise to a strong indication that the reasonableness standard of review will apply. 68 The nature of the regime also favours the standard of reasonableness. This Court has often recognized the relative expertise of labour arbitrators in the interpretation of collective agreements, and counselled that the review of their decisions should be approached with deference: CUPE, at pp. 235-36; Canada Safeway Ltd. v. RWDSU, Local 454, [1998] 1 S.C.R. 1079, at para. 58; Voice Page 28 404 Construction, at para. 22. The adjudicator in this case was, in fact, interpreting his enabling statute. Although the adjudicator was appointed on an ad hoc basis, he was selected by the mutual agreement of the parties and, at an institutional level, adjudicators acting under the PSLRA can be presumed to hold relative expertise in the interpretation of the legislation that gives them their mandate, as well as related legislation that they might often encounter in the course of their functions. See Alberta Union of Provincial Employees v. Lethbridge Community College. This factor also suggests a reasonableness standard of review. 69 The legislative purpose confirms this view of the regime. The PSLRA establishes a time- and cost-effective method of resolving employment disputes. It provides an alternative to judicial determination. Section 100.1 of the PSLRA defines the adjudicator's powers in deciding a dispute, but it also provides remedial protection for employees who are not unionized. The remedial nature of s. 100.1 and its provision for timely and binding [page229] settlements of disputes also imply that a reasonableness review is appropriate. 70 Finally, the nature of the legal question at issue is not one that is of central importance to the legal system and outside the specialized expertise of the adjudicator. This also suggests that the standard of reasonableness should apply. 71 Considering the privative clause, the nature of the regime, and the nature of the question of law here at issue, we conclude that the appropriate standard is reasonableness. We must now apply that standard to the issue considered by the adjudicator in his preliminary ruling. (2) Was the Adjudicator's Interpretation Unreasonable? 72 While we are required to give deference to the determination of the adjudicator, considering the decision in the preliminary ruling as a whole, we are unable to accept that it reaches the standard of reasonableness. The reasoning process of the adjudicator was deeply flawed. It relied on and led to a construction of the statute that fell outside the range of admissible statutory interpretations. 73 The adjudicator considered the New Brunswick Court of Appeal decision in Chalmers (Dr. Everett) Hospital v. Mills as well as amendments made to the PSLRA in 1990 (S.N.B. 1990, c. 30). Under the former version of the Act, an employee could grieve "with respect to ... disciplinary action resulting in discharge, suspension or a financial penalty" (s. 92(1)). The amended legislation grants the right to grieve "with respect to discharge, suspension or a financial penalty" (PSLRA, s. 100.1(2)). The adjudicator reasoned that the referential incorporation of s. 97(2.1) in s. 100.1(5) "necessarily means that an adjudicator has jurisdiction to make the determination described in subsection 97(2.1), i.e. that an employee has been discharged or otherwise disciplined for cause" (p. 5). He further stated that an employer "cannot avoid an inquiry into its real reasons for a discharge, or exclude resort to subsection 97(2.1), by simply stating that cause is not alleged" (ibid. (emphasis added)). The [page230] adjudicator concluded that he could determine whether a discharge purportedly with notice or pay in lieu of notice was in reality for cause. Page 29 405 74 The interpretation of the law is always contextual. The law does not operate in a vacuum. The adjudicator was required to take into account the legal context in which he was to apply the law. The employment relationship between the parties in this case was governed by private law. The contractual terms of employment could not reasonably be ignored. That is made clear by s. 20 of the Civil Service Act. Under the ordinary rules of contract, the employer is entitled to discharge an employee for cause, with notice or with pay in lieu of notice. Where the employer chooses to exercise its right to discharge with reasonable notice or pay in lieu thereof, the employer is not required to assert cause for discharge. The grievance process cannot have the effect of changing the terms of the contract of employment. The respondent chose to exercise its right to terminate without alleging cause in this case. By giving the PSLRA an interpretation that allowed him to inquire into the reasons for discharge where the employer had the right not to provide or even have such reasons, the adjudicator adopted a reasoning process that was fundamentally inconsistent with the employment contract and, thus, fatally flawed. For this reason, the decision does not fall within the range of acceptable outcomes that are defensible in respect of the facts and the law. 75 The decision of the adjudicator treated the appellant, a non-unionized employee, as a unionized employee. His interpretation of the PSLRA, which permits an adjudicator to inquire into the reasons for discharge where notice is given and, under s. 97(2.1), substitute a penalty that he or she determines just and reasonable in the circumstances, creates a requirement that the employer show cause before dismissal. There can be no justification for this; no reasonable interpretation can lead to that result. Section 100.1(5) incorporates s. 97(2.1) by reference into the determination of grievances brought by non-unionized employees. [page231] The employees subject to the PSLRA are usually unionized and the terms of their employment are determined by collective agreement; s. 97(2.1) explicitly refers to the collective agreement context. Section 100.1(5) referentially incorporates s. 97(2.1) mutatis mutandis into the non-collective agreement context so that non-unionized employees who are discharged for cause and without notice have the right to grieve the discharge and have the adjudicator substitute another penalty as seems just and reasonable in the circumstances. Therefore, the combined effect of s. 97(2.1) and s. 100.1 cannot, on any reasonable interpretation, remove the employer's right under contract law to discharge an employee with reasonable notice or pay in lieu of notice. 76 The interpretation of the adjudicator was simply unreasonable in the context of the legislative wording and the larger labour context in which it is embedded. It must be set aside. Nevertheless, it must be acknowledged that his interpretation of the PSLRA was ultimately inconsequential to the overall determination of the grievance, since the adjudicator made no finding as to whether the discharge was or was not, in fact, for cause. The decision on the merits, which resulted in an order that the appellant be reinstated, instead turned on the adjudicator's decision on a separate issue whether the appellant was entitled to and, if so, received procedural fairness with regard to the employer's decision to terminate his employment. This issue is discrete and isolated from the statutory interpretation issue, and it raises very different considerations. IV. Issue 2: Review of the Adjudicator's Procedural Fairness Determination Page 30 406 77 Procedural fairness has many faces. It is at issue where an administrative body may have prescribed rules of procedure that have been breached. It is also concerned with general principles involving the right to answer and defence where one's rights are affected. In this case, the appellant raised in his grievance letter that the reasons for the employer's dissatisfaction were not specified and that he did not have a reasonable opportunity to respond to the employer's concerns. There was, [page232] in his view, lack of due process and a breach of procedural fairness. 78 The procedural fairness issue was dealt with only briefly by the Court of Appeal. Robertson J.A. mentioned at the end of his reasons that a duty of fairness did not arise in this case since the appellant had been terminated with notice and had exercised his right to grieve. Before this Court, however, the appellant argued that he was entitled to procedural fairness as a result of this Court's jurisprudence. Although ultimately we do not agree with the appellant, his contention raises important issues that need to be examined more fully. A. Duty of Fairness 79 Procedural fairness is a cornerstone of modern Canadian administrative law. Public decision makers are required to act fairly in coming to decisions that affect the rights, privileges or interests of an individual. Thus stated the principle is easy to grasp. It is not, however, always easy to apply. As has been noted many times, "the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case" (Knight, at p. 682; Baker, at para. 21; Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11, at paras. 74-75). 80 This case raises the issue of the extent to which a duty of fairness applies to the dismissal of a public employee pursuant to a contract of employment. The grievance adjudicator concluded that the appellant had been denied procedural fairness because he had not been granted a hearing by the employer before being dismissed with four months' pay in lieu of notice. This conclusion was said to flow from this Court's decision in Knight, where it was held that the holder of an office "at pleasure" was entitled to be given the reasons for his or her dismissal and an opportunity to be heard before being dismissed (p. 683). 81 We are of the view that the principles established in Knight relating to the applicability of a duty of fairness in the context of public employment [page233] merit reconsideration. While the majority opinion in Knight properly recognized the important place of a general duty of fairness in administrative law, in our opinion, it incorrectly analyzed the effects of a contract of employment on such a duty. The majority in Knight proceeded on the premise that a duty of fairness based on public law applied unless expressly excluded by the employment contract or the statute (p. 681), without consideration of the terms of the contract with regard to fairness issues. It also upheld the distinction between office holders and contractual employees for procedural fairness purposes (pp. 670-76). In our view, what matters is the nature of the employment relationship between the public employee and the public employer. Where a public employee is employed under a contract of Page 31 407 employment, regardless of his or her status as a public office holder, the applicable law governing his or her dismissal is the law of contract, not general principles arising out of public law. What Knight truly stands for is the principle that there is always a recourse available where the employee is an office holder and the applicable law leaves him or her without any protection whatsoever when dismissed. 82 This conclusion does not detract from the general duty of fairness owed by administrative decision makers. Rather it acknowledges that in the specific context of dismissal from public employment, disputes should be viewed through the lens of contract law rather than public law. 83 In order to understand why a reconsideration of Knight is warranted, it is necessary to review the development of the duty of fairness in Canadian administrative law. As we shall see, its development in the public employment context was intimately related to the distinction between public office holders and contractual employees, a distinction which, in our view, has become increasingly difficult to maintain both in principle and in practice. (1) The Preliminary Issue of Jurisdiction 84 Before dealing with the scope of the duty of fairness in this case, a word should be said about the respondent's preliminary objection to the jurisdiction of the adjudicator under the PSLRA [page234] to consider procedural fairness. The respondent argues that allowing adjudicators to consider procedural fairness risks granting them the inherent powers of a court. We disagree. We can see nothing problematic with a grievance adjudicator considering a public law duty of fairness issue where such a duty exists. It falls squarely within the adjudicator's task to resolve a grievance. However, as will be explained below, the proper approach is to first identify the nature of the employment relationship and the applicable law. Where, as here, the relationship is contractual, a public law duty of fairness is not engaged and therefore should play no role in resolving the grievance. (2) The Development of the Duty of Fairness in Canadian Public Law 85 In Canada, the modern concept of procedural fairness in administrative law was inspired by the House of Lords' landmark decision in Ridge v. Baldwin, [1963] 2 All E.R. 66, a case which involved the summary dismissal of the chief constable of Brighton. The House of Lords declared the chief constable's dismissal a nullity on the grounds that the administrative body which had dismissed him had failed to provide the reasons for his dismissal or to accord him an opportunity to be heard in violation of the rules of natural justice. Central to the reasoning in the case was Lord Reid's distinction between (i) master-servant relationships (i.e. contractual employment), (ii) offices held "at pleasure", and (iii) offices where there must be cause for dismissal, which included the chief constable's position. According to Lord Reid, only the last category of persons was entitled to procedural fairness in relation to their dismissal since both contractual employees and office holders employed "at pleasure" could be dismissed without reason (p. 72). As the authors Wade and Forsyth note that, after a period of retreat from imposing procedural fairness requirements on administrative Page 32 408 decision makers, Ridge v. Baldwin "marked an important change of judicial policy, indicating that natural justice was restored to favour and would be applied on a wide basis" (W. Wade and C. Forsyth, Administrative Law (8th ed. 2000), at p. 438). [page235] 86 The principles established by Ridge v. Baldwin were followed by this Court in Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311. Nicholson, like its U.K. predecessor, marked the return to a less rigid approach to natural justice in Canada (see Brown and Evans, at pp. 7-5 to 7-9). Nicholson concerned the summary dismissal of a probationary police officer by a regional board of police commissioners. Laskin C.J., for the majority, at p. 328, declared the dismissal void on the ground that the officer fell into Lord Reid's third category and was therefore entitled to the same procedural protections as in Ridge v. Baldwin. 87 Although Ridge v. Baldwin and Nicholson were concerned with procedural fairness in the context of the dismissal of public office holders, the concept of fairness was quickly extended to other types of administrative decisions (see e.g. Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602; Kane v. Board of Governors of the University of British Columbia, [1980] 1 S.C.R. 1105; Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735). In Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, Le Dain J. stated that the duty of fairness was a general principle of law applicable to all public authorities: This Court has affirmed that there is, as a general common law principle, a duty of procedural fairness lying on every public authority making an administrative decision which is not of a legislative nature and which affects the rights, privileges or interests of an individual ... . [p. 653] (See also Baker, at para. 20.) 88 In Knight, the Court relied on the statement of Le Dain J. in Cardinal v. Director of Kent Institution that the existence of a general duty to act fairly will depend on "(i) the nature of the decision to be made by the administrative body; (ii) the relationship existing between that body and the [page236] individual; and (iii) the effect of that decision on the individual's rights" (Knight, at p. 669). 89 The dispute in Knight centred on whether a board of education had failed to accord procedural fairness when it dismissed a director of education with three months' notice pursuant to his contract of employment. The main issue was whether the director's employment relationship with the school board was one that attracted a public law duty of fairness. L'Heureux-Dubé J., for the majority, held that it did attract such a duty on the ground that the director's position had a "strong 'statutory flavour'" and could thus be qualified as a public office (p. 672). In doing so, she specifically recognized that, contrary to Lord Reid's holding in Ridge v. Baldwin, holders of an office "at Page 33 409 pleasure", were also entitled to procedural fairness before being dismissed (pp. 673-74). The fact that the director's written contract of employment specifically provided that he could be dismissed with three months' notice was held not to be enough to displace a public law duty to act fairly (p. 681). 90 From these foundational cases, procedural fairness has grown to become a central principle of Canadian administrative law. Its overarching purpose is not difficult to discern: administrative decision makers, in the exercise of public powers, should act fairly in coming to decisions that affect the interests of individuals. In other words, "[t]he observance of fair procedures is central to the notion of the 'just' exercise of power" (Brown and Evans, at p. 7-3). What is less clear, however, is whether this purpose is served by imposing public law procedural fairness requirements on public bodies in the exercise of their contractual rights as employers. (3) Procedural Fairness in the Public Employment Context 91 Ridge v. Baldwin and Nicholson established that a public employee's right to procedural fairness [page237] depended on his or her status as an office holder. While Knight extended a duty of fairness to office holders during pleasure, it nevertheless upheld the distinction between office holders and contractual employees as an important criterion in establishing whether a duty of fairness was owed. Courts have continued to rely on this distinction, either extending or denying procedural protections depending on the characterization of the public employee's legal status as an office holder or contractual employee (see e.g. Reglin v. Creston (Town) (2004), 34 C.C.E.L. (3d) 123, 2004 BCSC 790; Gismondi v. Toronto (City) (2003), 64 O.R. (3d) 688 (C.A.); Seshia v. Health Sciences Centre (2001), 160 Man. R. (2d) 41, 2001 MBCA 151; Rosen v. Saskatoon District Health Board (2001), 202 D.L.R. (4th) 35, 2001 SKCA 83; Hanis v. Teevan (1998), 111 O.A.C. 91; Gerrard v. Sackville (Town) (1992), 124 N.B.R. (2d) 70 (C.A.)) . 92 In practice, a clear distinction between office holders and contractual employees has been difficult to maintain: Although the law makes such a sharp distinction between office and service in theory, in practice it may be difficult to tell which is which. For tax purposes "office" has long been defined as a "subsisting, permanent substantive position which has an existence independent of the person who fills it", but for the purposes of natural justice the test may not be the same. Nor need an office necessarily be statutory, although nearly all public offices of importance in administrative law are statutory. A statutory public authority may have many employees who are in law merely its servants, and others of higher grades who are office-holders. (Wade and Forsyth, at pp. 532-33) 93 Lord Wilberforce noted that attempting to separate office holders from contractual employees Page 34 410 involves the risk of a compartmental approach which, although convenient as a solvent, may lead to narrower distinctions than are appropriate to the broader issues of administrative law. A comparative list of situations in which persons have been held entitled or not entitled to a hearing, or to observation of rules of natural [page238] justice, according to the master and servant test, looks illogical and even bizarre. (Malloch v. Aberdeen Corp., [1971] 2 All E.R. 1278 (H.L.), at p. 1294) 94 There is no reason to think that the distinction has been easier to apply in Canada. In Knight, as has been noted, the majority judgment relied on whether the public employee's position had a "strong 'statutory flavour'" (p. 672), but as Brown and Evans observe, "there is no simple test for determining whether there is a sufficiently strong 'statutory flavour' to a job for it to be classified as an 'office'" (p. 7-19). This has led to uncertainty as to whether procedural fairness attaches to particular positions. For instance, there are conflicting decisions on whether the position of a "middle manager" in a municipality is sufficiently important to attract a duty of fairness (compare Gismondi, at para. 53, and Hughes v. Moncton (City) (1990), 111 N.B.R. (2d) 184 (Q.B.), aff'd (1991), 118 N.B.R. (2d) 306 (C.A.)). Similarly, physicians working in the public health system may or may not be entitled to a duty of fairness (compare Seshia and Rosen v. Saskatoon District Health Board, [2000] 4 W.W.R. 606, 2000 SKQB 40). 95 Further complicating the distinction is the fact that public employment is for the most part now viewed as a regular contractual employment relationship. The traditional position at common law was that public servants were literally "servants of the Crown" and could therefore be dismissed at will. However, it is now recognized that most public employees are employed on a contractual basis: Wells v. Newfoundland, [1999] 3 S.C.R. 199. 96 Wells concerned the dismissal without compensation of a public office holder whose position had been abolished by statute. The Court held that, while Wells' position was created by statute, his employment relationship with the Crown was contractual and therefore he was entitled to be compensated for breach of contract according [page239] to ordinary private law principles. Indeed, Wells recognized that most civil servants and public officers are employed under contracts of employment, either as members of unions bound by collective agreements or as non-unionized employees under individual contracts of employment (paras. 20-21 and 29-32). Only certain officers, like ministers of the Crown and "others who fulfill constitutionally defined state roles", do not have a contractual relationship with the Crown, since the terms of their positions cannot be modified by agreement (Wells, at paras. 29-32). 97 The effect of Wells, as Professors Hogg and Monahan note, is that [t]he government's common law relationship with its employees will now be governed, for the most part, by the general law of contract, in the same way as Page 35 411 private employment relationships. This does not mean that governments cannot provide for a right to terminate employment contracts at pleasure. However, if the government wishes to have such a right, it must either contract for it or make provision (expressly or by necessary implication) by way of statute. (P. W. Hogg and P. J. Monahan, Liability of the Crown (3rd ed. 2000), at p. 240) The important point for our purposes is that Wells confirmed that most public office holders have a contractual employment relationship. Of course, office holders' positions will also often be governed by statute and regulations, but the essence of the employment relationship is still contractual. In this context, attempting to make a clear distinction between office holders and contractual employees for the purposes of procedural fairness becomes even more difficult. 98 If the distinction has become difficult to maintain in practice, it is also increasingly hard to justify in principle. There would appear to be three main reasons for distinguishing between office holders and contractual employees and for extending procedural fairness protections only to the former, all of which, in our view, are problematic. 99 First, historically, offices were viewed as a form of property, and thus could be recovered by [page240] the office holder who was removed contrary to the principles of natural justice. Employees who were dismissed in breach of their contract, however, could only sue for damages, since specific performance is not generally available for contracts for personal service (Wade and Forsyth, at pp. 531-32). This conception of public office has long since faded from our law: public offices are no longer treated as a form of private property. 100 A second and more persuasive reason for the distinction is that dismissal from public office involves the exercise of delegated statutory power and should therefore be subject to public law controls like any other administrative decision (Knight, at p. 675; Malloch, at p. 1293, per Lord Wilberforce). In contrast, the dismissal of a contractual employee only implicates a public authority's private law rights as an employer. 101 A third reason is that, unlike contractual employees, office holders did not typically benefit from contractual rights protecting them from summary discharge. This was true of the public office holders in Ridge v. Baldwin and Nicholson. Indeed, in both cases the statutory language purported to authorize dismissal without notice. The holders of an office "at pleasure" were in an even more tenuous position since by definition they could be dismissed without notice and without reason (Nicholson, at p. 323; Black's Law Dictionary (8th ed. 2004), at p. 1192 "pleasure appointment"). Because of this relative insecurity it was seen to be desirable to impose minimal procedural requirements in order to ensure that office holders were not deprived of their positions arbitrarily (Nicholson, at pp. 322-23; Knight, at pp. 674-75; Wade and Forsyth, at pp. 536-37). 102 In our view, the existence of a contract of employment, not the public employee's status as an Page 36 412 office holder, is the crucial consideration. Where a public office holder is employed under a contract of employment the justifications for imposing a public law duty of fairness with respect to his or her dismissal lose much of their force. [page241] 103 Where the employment relationship is contractual, it becomes difficult to see how a public employer is acting any differently in dismissing a public office holder and a contractual employee. In both cases, it would seem that the public employer is merely exercising its private law rights as an employer. For instance, in Knight, the director's position was terminated by a resolution passed by the board of education pursuant to statute, but it was done in accordance with the contract of employment, which provided for dismissal on three months' notice. Similarly, the appellant in this case was dismissed pursuant to s. 20 of the New Brunswick Civil Service Act, but that section provides that the ordinary rules of contract govern dismissal. He could therefore only be dismissed for just cause or on reasonable notice, and any failure to do so would give rise to a right to damages. In seeking to end the employment relationship with four months' pay in lieu of notice, the respondent was acting no differently than any other employer at common law. In Wells, Major J. noted that public employment had all of the features of a contractual relationship: A common-sense view of what it means to work for the government suggests that these relationships have all the hallmarks of contract. There are negotiations leading to agreement and employment. This gives rise to enforceable obligations on both sides. The Crown is acting much as an ordinary citizen would, engaging in mutually beneficial commercial relations with individual and corporate actors. Although the Crown may have statutory guidelines, the result is still a contract of employment. [Emphasis added; para. 22.] If the Crown is acting as any other private actor would in hiring its employees, then it follows that the dismissal of its employees should be viewed in the same way. 104 Furthermore, while public law is rightly concerned with preventing the arbitrary exercise of delegated powers, the good faith exercise of the contractual rights of an employer, such as the right [page242] to end the employment relationship on reasonable notice, cannot be qualified as arbitrary. Where the terms of the employment contract were explicitly agreed to, it will be assumed that procedural fairness was dealt with by the parties (see, for example, in the context of collective agreements: School District No. 5 (Southeast Kootenay) and B.C.T.F. (Yellowaga) (Re) (2000), 94 L.A.C. (4th) 56). If, however, the contract of employment is silent, the fundamental terms will be supplied by the common law or the civil law, in which case dismissal may only be for just cause or on reasonable notice. Page 37 413 105 In the context of this appeal, it must be emphasized that dismissal with reasonable notice is not unfair per se. An employer's right to terminate the employment relationship with due notice is simply the counterpart to the employee's right to quit with due notice (G. England, Employment Law in Canada (4th ed. (loose-leaf)), at para. 13.3). It is a well-established principle of the common law that, unless otherwise provided, both parties to an employment contract may end the relationship without alleging cause so long as they provide adequate notice. An employer's right to terminate on reasonable notice must be exercised within the framework of an employer's general obligations of good faith and fair dealing: Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, at para. 95 . But the good faith exercise of a common law contractual right to dismiss with notice does not give rise to concerns about the illegitimate exercise of public power. Moreover, as will be discussed below, where public employers do act in bad faith or engage in unfair dealing, the private law provides a more appropriate form of relief and there is no reason that they should be treated differently than private sector employers who engage in similar conduct. 106 Of course, a public authority must abide by any statutory restrictions on the exercise of its discretion as an employer, regardless of the terms of an employment contract, and failure to do so may give rise to a public law remedy. A public authority cannot contract out of its statutory duties. But where a dismissal decision is properly within the public authority's powers and is taken pursuant to [page243] a contract of employment, there is no compelling public law purpose for imposing a duty of fairness. 107 Nor is the protection of office holders a justification for imposing a duty of fairness when the employee is protected from wrongful dismissal by contract. The appellant's situation provides a good illustration of why this is so. As an office holder, the appellant was employed "at pleasure", and could therefore be terminated without notice or reason (Interpretation Act, R.S.N.B. 1973, c. I-13, s. 20). However, he was also a civil servant and, pursuant to s. 20 of the Civil Service Act, his dismissal was governed by the ordinary rules of contract. If his employer had dismissed him without notice and without cause he would have been entitled to claim damages for breach of contract. Even if he was dismissed with notice, it was open to him to challenge the length of notice or amount of pay in lieu of notice given. On the facts, the respondent gave the appellant four months' worth of pay in lieu of notice, which he was successful in having increased to eight months before the grievance adjudicator. 108 It is true that the remedy of reinstatement is not available for breach of contract at common law. In this regard, it might be argued that contractual remedies, on their own, offer insufficient protection to office holders (see de Smith, Woolf & Jowell: Judicial Review of Administrative Action (5th ed. 1995), at p. 187 ). However, it must be kept in mind that breach of a public law duty of fairness also does not lead to full reinstatement. The effect of a breach of procedural fairness is to render the dismissal decision void ab initio (Ridge v. Baldwin, at p. 81). Accordingly, the employment is deemed to have never ceased and the office holder is entitled to unpaid wages and benefits from the date of the dismissal to the date of judgment (see England, at para. 17.224). However, an employer is free to follow the correct procedure and dismiss the office holder again. A Page 38 414 breach of the duty of fairness simply requires that the dismissal decision be retaken. It therefore is incorrect to equate it to reinstatement (see Malloch, at p. 1284). [page244] 109 In addition, a public law remedy can lead to unfairness. The amount of unpaid wages and benefits an office holder is entitled to will be a function of the length of time the judicial process has taken to wend its way to a final resolution rather than criteria related to the employee's situation. Furthermore, in principle, there is no duty to mitigate since unpaid wages are not technically damages. As a result, an employee may recoup much more than he or she actually lost (see England, at para. 17.224). 110 In contrast, the private law offers a more principled and fair remedy. The length of notice or amount of pay in lieu of notice an employee is entitled to depends on a number of factors including length of service, age, experience and the availability of alternative employment (see Wallace, at paras. 81 ff.). The notice period may be increased if it is established that the employer acted in bad faith or engaged in unfair dealing when acting to dismiss the employee (Wallace, at para. 95). These considerations aim at ensuring that dismissed employees are afforded some measure of protection while looking for new employment. 111 It is important to note as well that the appellant, as a public employee employed under a contract of employment, also had access to all of the same statutory and common law protections that surround private sector employment. He was protected from dismissal on the basis of a prohibited ground of discrimination under the Human Rights Act, R.S.N.B. 1973, c. H-11. His employer was bound to respect the norms laid down by the Employment Standards Act, S.N.B. 1982, c. E-7.2. As has already been mentioned, if his dismissal had been in bad faith or he had been subject to unfair dealing, it would have been open to him to argue for an extension of the notice period pursuant to the principles laid down in Wallace. In short, the appellant was not without legal protections or remedies in the face of his dismissal. (4) The Proper Approach to the Dismissal of Public Employees 112 In our view, the distinction between office holder and contractual employee for the purposes [page245] of a public law duty of fairness is problematic and should be done away with. The distinction is difficult to apply in practice and does not correspond with the justifications for imposing public law procedural fairness requirements. What is important in assessing the actions of a public employer in relation to its employees is the nature of the employment relationship. Where the relationship is contractual, it should be viewed as any other private law employment relationship regardless of an employee's status as an office holder. 113 The starting point, therefore, in any analysis, should be to determine the nature of the Page 39 415 employment relationship with the public authority. Following Wells, it is assumed that most public employment relationships are contractual. Where this is the case, disputes relating to dismissal should be resolved according to the express or implied terms of the contract of employment and any applicable statutes and regulations, without regard for whether the employee is an office holder. A public authority which dismisses an employee pursuant to a contract of employment should not be subject to any additional public law duty of fairness. Where the dismissal results in a breach of contract, the public employee will have access to ordinary contractual remedies. 114 The principles expressed in Knight in relation to the general duty of fairness owed by public authorities when making decisions that affect the rights, privileges or interests of individuals are valid and important. However, to the extent that the majority decision in Knight ignored the important effect of a contract of employment, it should not be followed. Where a public employee is protected from wrongful dismissal by contract, his or her remedy should be in private law, not in public law. 115 The dismissal of a public employee should therefore generally be viewed as a typical employment law dispute. However, there may be occasions where a public law duty of fairness will still apply. We can envision two such situations at present. The first occurs where a public employee is not, in fact, [page246] protected by a contract of employment. This will be the case with judges, ministers of the Crown and others who "fulfill constitutionally defined state roles" (Wells, at para. 31). It may also be that the terms of appointment of some public office holders expressly provide for summary dismissal or, at the very least, are silent on the matter, in which case the office holders may be deemed to hold office "at pleasure" (see e.g. New Brunswick Interpretation Act, s. 20; Interpretation Act, R.S.C. 1985, c. I-21, s. 23(1)). Because an employee in this situation is truly subject to the will of the Crown, procedural fairness is required to ensure that public power is not exercised capriciously. 116 A second situation occurs when a duty of fairness flows by necessary implication from a statutory power governing the employment relationship. In Malloch, the applicable statute provided that dismissal of a teacher could only take place if the teacher was given three weeks' notice of the motion to dismiss. The House of Lords found that this necessarily implied a right for the teacher to make representations at the meeting where the dismissal motion was being considered. Otherwise, there would have been little reason for Parliament to have provided for the notice procedure in the first place (p. 1282). Whether and what type of procedural requirements result from a particular statutory power will of course depend on the specific wording at issue and will vary with the context (Knight, at p. 682). B. Conclusion 117 In this case, the appellant was a contractual employee of the respondent in addition to being a public office holder. Section 20 of the Civil Service Act provided that, as a civil servant, he could only be dismissed in accordance with the ordinary rules of contract. In these circumstances it was Page 40 416 unnecessary to consider any public law duty of procedural fairness. The respondent was fully within its rights [page247] to dismiss the appellant with pay in lieu of notice without affording him a hearing. The respondent dismissed the appellant with four months' pay in lieu of notice. The appellant was successful in increasing this amount to eight months. The appellant was protected by contract and was able to obtain contractual remedies in relation to his dismissal. By imposing procedural fairness requirements on the respondent over and above its contractual obligations and ordering the full "reinstatement" of the appellant, the adjudicator erred in his application of the duty of fairness and his decision was therefore correctly struck down by the Court of Queen's Bench. V. Disposition 118 We would dismiss the appeal. There will be no order for costs in this Court as the respondent is not requesting them. The following are the reasons delivered by 119 BINNIE J.:-- I agree with my colleagues that the appellant's former employment relationship with the respondent is governed by contract. The respondent chose to exercise its right to terminate the employment without alleging cause. The adjudicator adopted an unreasonable interpretation of s. 20 of the Civil Service Act, S.N.B. 1984, c. C-5.1, and of ss. 97(2.1) and 100.1 of the Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25. The appellant was a non-unionized employee whose job was terminated in accordance with contract law. Public law principles of procedural fairness were not applicable in the circumstances. These conclusions are enough to dispose of the appeal. 120 However, my colleagues Bastarache and LeBel JJ. are embarked on a more ambitious mission, stating that: Although the instant appeal deals with the particular problem of judicial review of the decisions of [page248] an adjudicative tribunal, these reasons will address first and foremost the structure and characteristics of the system of judicial review as a whole. ... ... The time has arrived to re-examine the Canadian approach to judicial review of administrative decisions and develop a principled framework that is more coherent and workable. [Emphasis added; paras. 33 and 32.] 121 The need for such a re-examination is widely recognized, but in the end my colleagues' reasons for judgment do not deal with the "system as a whole". They focus on administrative tribunals. In that context, they reduce the applicable standards of review from three to two ("correctness" and "reasonableness"), but retain the pragmatic and functional analysis, although Page 41 417 now it is to be called the "standard of review analysis" (para. 63). A broader reappraisal is called for. Changing the name of the old pragmatic and functional test represents a limited advance, but as the poet says: What's in a name? that which we call a rose By any other name would smell as sweet; (Romeo and Juliet, Act II, Scene ii) 122 I am emboldened by my colleagues' insistence that "a holistic approach is needed when considering fundamental principles" (para. 26) to express the following views. Judicial review is an idea that has lately become unduly burdened with law office metaphysics. We are concerned with substance not nomenclature. The words themselves are unobjectionable. The dreaded reference to "functional" can simply be taken to mean that generally speaking courts have the last word on what they consider the correct decision on legal matters (because deciding legal issues is their "function"), while administrators should generally have the last word within their function, which is to decide administrative matters. The word "pragmatic" not only signals a distaste for formalism but recognizes that a conceptually tidy division of functions has to be tempered by [page249] practical considerations: for example, a labour board is better placed than the courts to interpret the intricacies of provisions in a labour statute governing replacement of union workers; see e.g. Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227. 123 Parliament or a provincial legislature is often well advised to allocate an administrative decision to someone other than a judge. The judge is on the outside of the administration looking in. The legislators are entitled to put their trust in the viewpoint of the designated decision maker (particularly as to what constitutes a reasonable outcome), not only in the case of the administrative tribunals of principal concern to my colleagues but (taking a "holistic approach") also in the case of a minister, a board, a public servant, a commission, an elected council or other administrative bodies and statutory decision makers. In the absence of a full statutory right of appeal, the court ought generally to respect the exercise of the administrative discretion, particularly in the face of a privative clause. 124 On the other hand, a court is right to insist that its view of the correct opinion (i.e. the "correctness" standard of review) is accepted on questions concerning the Constitution, the common law, and the interpretation of a statute other than the administrator's enabling statute (the "home statute") or a rule or statute closely connected with it; see generally D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at para. 14:2210. 125 Thus the law (or, more grandly, the "rule of law") sets the boundaries of potential administrative action. It is sometimes said by judges that an administrator acting within his or her discretion [page250] "has the right to be wrong". This reflects an unduly court-centred view of the Page 42 418 universe. A disagreement between the court and an administrator does not necessarily mean that the administrator is wrong. A. Limits on the Allocation of Decision Making 126 It should not be difficult in the course of judicial review to identify legal questions requiring disposition by a judge. There are three basic legal limits on the allocation of administrative discretion. 127 Firstly, the Constitution restricts the legislator's ability to allocate issues to administrative bodies which s. 96 of the Constitution Act, 1867 has allocated to the courts. The logic of the constitutional limitation is obvious. If the limitation did not exist, the government could transfer the work of the courts to administrative bodies that are not independent of the executive and by statute immunize the decisions of these bodies from effective judicial review. The country would still possess an independent judiciary, but the courts would not be available to citizens whose rights or interests are trapped in the administration. 128 Secondly, administrative action must be founded on statutory or prerogative (i.e. common law) powers . This too is a simple idea. No one can exercise a power they do not possess. Whether or not the power (or jurisdiction) exists is a question of law for the courts to determine, just as it is for the courts (not the administrators) to have the final word on questions of general law that may be relevant to the resolution of an administrative issue. The instances where this Court has deferred to an administrator's conclusion of law outside his or her home statute, or a statute "intimately" connected thereto, are exceptional. We should say so. Instead, my colleagues say the court's view of the law will prevail where the question at issue is one of general law "that is both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise". [para. 60] It is, with respect, a distraction to unleash a debate in the reviewing judge's courtroom about whether or not a particular question of law is "of central importance to the legal system as a whole". It should be sufficient to frame a rule exempting from the correctness standard the provisions of the home statute and closely related statutes which require the expertise of the administrative decision maker (as in the labour board example). Apart from that exception, we should prefer clarity to needless complexity and hold that the last word on questions of general law should be left to judges. [page251] 129 Thirdly, a fair procedure is said to be the handmaiden of justice. Accordingly, procedural limits are placed on administrative bodies by statute and the common law. These include the Page 43 419 requirements of "procedural fairness", which will vary with the type of decision maker and the type of decision under review. On such matters, as well, the courts have the final say. The need for such procedural safeguards is obvious. Nobody should have his or her rights, interests or privileges adversely dealt with by an unjust process. Nor is such an unjust intent to be attributed easily to legislators. Hansard is full of expressions of concern by Ministers and Members of Parliament regarding the fairness of proposed legislative provisions. There is a dated hauteur about judicial pronouncements such as that the "justice of the common law will supply the omission of the legislature" (Cooper v. Wandsworth Board of Works (1863), 14 C.B. (N.S.) 180, 143 E.R. 414 (C.P.), at p. 420). Generally speaking, legislators and judges in this country are working with a common set of basic legal and constitutional values. They share a belief in the rule of law. Constitutional considerations aside, however, statutory protections can nevertheless be repealed and common law protections can be modified by statute, as was demonstrated in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor [page252] Control and Licensing Branch), [2001] 2 S.C.R. 781, 2001 SCC 52. B. Reasonableness of Outcome 130 At this point, judicial review shifts gears. When the applicant for judicial review challenges the substantive outcome of an administrative action, the judge is invited to cross the line into second-guessing matters that lie within the function of the administrator. This is controversial because it is not immediately obvious why a judge's view of the reasonableness of an administrative policy or the exercise of an administrative discretion should be preferred to that of the administrator to whom Parliament or a legislature has allocated the decision, unless there is a full statutory right of appeal to the courts, or it is otherwise indicated in the conferring legislation that a "correctness" standard is intended. 131 In U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, Beetz J. adopted the view that "[t]o a large extent judicial review of administrative action is a specialized branch of statutory interpretation" (p. 1087 (emphasis deleted)). Judicial intervention in administrative decisions on grounds of substance (in the absence of a constitutional challenge) has been based on presumed legislative intent in a line of cases from Associated Provincial Picture Houses Ltd. v. Wednesbury Corp., [1947] 2 All E.R. 680 (C.A.) ("you may have something so absurd that no sensible person could ever dream that it lay within the powers of the authority" (p. 683)) to Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp. ("was the Board's interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation ... ?" (p. 237)). More recent examples are Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 (para. 53), and Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [page253] [2001] 2 S.C.R. 281, 2001 SCC 41 (paras. 60-61). Judicial review proceeds on the justified presumption that legislators do not intend results that depart from reasonable standards. C. The Need to Reappraise the Approach to Judicial Review Page 44 420 132 The present difficulty, it seems, does not lie in the component parts of judicial review, most of which are well entrenched in decades of case law, but in the current methodology for putting those component parts into action. There is afoot in the legal profession a desire for clearer guidance than is provided by lists of principles, factors and spectrums. It must be recognized, of course, that complexity is inherent in all legal principles that must address the vast range of administrative decision making. The objection is that our present "pragmatic and functional" approach is more complicated than is required by the subject matter. 133 People who feel victimized or unjustly dealt with by the apparatus of government, and who have no recourse to an administrative appeal, should have access to an independent judge through a procedure that is quick and relatively inexpensive. Like much litigation these days, however, judicial review is burdened with undue cost and delay. Litigants understandably hesitate to go to court to seek redress for a perceived administrative injustice if their lawyers cannot predict with confidence even what standard of review will be applied. The disposition of the case may well turn on the choice of standard of review. If litigants do take the plunge, they may find the court's attention focussed not on their complaints, or the government's response, but on lengthy and arcane discussions of something they are told is the pragmatic and functional test. Every hour of a lawyer's preparation and court time devoted to unproductive "lawyer's talk" poses a significant cost to the applicant. If the challenge is unsuccessful, the unhappy applicant may also [page254] face a substantial bill of costs from the successful government agency. A victory before the reviewing court may be overturned on appeal because the wrong "standard of review" was selected. A small business denied a licence or a professional person who wants to challenge disciplinary action should be able to seek judicial review without betting the store or the house on the outcome. Thus, in my view, the law of judicial review should be pruned of some of its unduly subtle, unproductive, or esoteric features. D. Standards of Review 134 My colleagues conclude that three standards of review should be reduced to two standards of review. I agree that this simplification will avoid some of the arcane debates about the point at which "unreasonableness" becomes "patent unreasonableness". However, in my view the repercussions of their position go well beyond administrative tribunals. My colleagues conclude, and I agree: Looking to either the magnitude or the immediacy of the defect in the tribunal's decision provides no meaningful way in practice of distinguishing between a patently unreasonable and an unreasonable decision. [para. 41] More broadly, they declare that "the analytical problems that arise in trying to apply the different standards undercut any conceptual usefulness created by the inherently greater flexibility of having Page 45 421 multiple standards of review" (para. 44), and "any actual difference between them in terms of their operation appears to be illusory" (para. 41). A test which is incoherent when applied to administrative tribunals does not gain in coherence or logic when applied to other administrative decision makers such as mid-level bureaucrats or, for that matter, Ministers. If logic and language cannot capture the distinction in one context, it must equally be deficient elsewhere in the field of judicial review. I therefore proceed on the basis that the distinction between "patent unreasonableness" and "reasonableness simpliciter" has been declared by the Court [page255] to be abandoned. I propose at this point to examine what I see as some of the implications of this abandonment. E. Degrees of Deference 135 The distinction between reasonableness simpliciter and patent unreasonableness was not directed merely to "the magnitude or the immediacy of the defect" in the administrative decision (para. 41). The distinction also recognized that different administrative decisions command different degrees of deference, depending on who is deciding what. 136 A minister making decisions under the Extradition Act, R.S.C. 1985, c. E-23, to surrender a fugitive, for example, is said to be "at the extreme legislative end of the continuum of administrative decision-making" (Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, at p. 659). On the other hand, a ministerial delegate making a deportation decision according to ministerial guidelines was accorded considerably less deference in Baker (where the "reasonableness simpliciter" standard was applied). The difference does not lie only in the judge's view of the perceived immediacy of the defect in the administrative decision. In Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, a unanimous Court adopted the caution in the context of counter-terrorism measures that "[i]f the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove" (para. 33). Administrative decision makers generally command respect more for their expertise than for their prominence in the administrative food chain. Far more numerous are the lesser officials who reside in the bowels and recesses of government departments adjudicating pension benefits or the granting or withholding of licences, or municipal boards poring over budgets or allocating costs of local improvements. Then there are the Cabinet and Ministers of the Crown who make broad decisions of public policy such as testing cruise missiles, Operation Dismantle Inc. v. The Queen, [1985] 1 S.C.R. 441, or policy decisions [page256] arising out of decisions of major administrative tribunals, as in Attorney General of Canada v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735, at p. 753, where the Court said: "The very nature of the body must be taken into account in assessing the technique of review which has been adopted by the Governor in Council." 137 Of course, the degree of deference also depends on the nature and content of the question. An adjudicative tribunal called on to approve pipelines based on "public convenience and necessity" (Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322) or simply to take a decision in the "public interest" is necessarily accorded more room to manoeuvre than is a Page 46 422 professional body, given the task of determining an appropriate sanction for a member's misconduct (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20). 138 In our recent jurisprudence, the "nature of the question" before the decision maker has been considered as one of a number of elements to be considered in choosing amongst the various standards of review. At this point, however, I believe it plays a more important role in terms of substantive review. It helps to define the range of reasonable outcomes within which the administrator is authorized to choose. 139 The judicial sensitivity to different levels of respect (or deference) required in different situations is quite legitimate. "Contextualizing" a single standard of review will shift the debate (slightly) from choosing between two standards of reasonableness that each represent a different level of deference to a debate within a single standard of reasonableness to determine the appropriate level of deference. In practice, the result of today's decision may be like the bold innovations of a traffic engineer that in the end do no more than shift rush hour congestion from one road intersection to another [page257] without any overall saving to motorists in time or expense. 140 That said, I agree that the repeated attempts to define and explain the difference between reasonableness simpliciter and "patent" unreasonableness can be seen with the benefit of hindsight to be unproductive and distracting. Nevertheless, the underlying issue of degrees of deference (which the two standards were designed to address) remains. 141 Historically, our law recognized "patent" unreasonableness before it recognized what became known as reasonableness simpliciter. The adjective "patent" initially underscored the level of respect that was due to the designated decision maker, and signalled the narrow authority of the courts to interfere with a particular administrative outcome on substantive grounds. The reasonableness simpliciter standard was added at a later date to recognize a reduced level of deference. Reducing three standards of review to two standards of review does not alter the reality that at the high end "patent" unreasonableness (in the sense of manifestly indefensible) was not a bad description of the hurdle an applicant had to get over to have an administrative decision quashed on a ground of substance. The danger of labelling the most "deferential" standard as "reasonableness" is that it may be taken (wrongly) as an invitation to reviewing judges not simply to identify the usual issues, such as whether irrelevant matters were taken into consideration, or relevant matters were not taken into consideration, but to reweigh the input that resulted in the administrator's decision as if it were the judge's view of "reasonableness" that counts. At this point, the judge's role is to identify the outer boundaries of reasonable outcomes within which the administrative decision maker is free to choose. F. Multiple Aspects of Administrative Decisions 142 Mention should be made of a further feature that also reflects the complexity of the subject [page258] matter of judicial review. An applicant may advance several grounds for quashing an administrative decision. He or she may contend that the decision maker has misinterpreted the Page 47 423 general law. He or she may argue, in the alternative, that even if the decision maker got the general law straight (an issue on which the court's view of what is correct will prevail), the decision maker did not properly apply it to the facts (an issue on which the decision maker is entitled to deference). In a challenge under the Canadian Charter of Rights and Freedoms to a surrender for extradition, for example, the minister will have to comply with the Court's view of Charter principles (the "correctness" standard), but if he or she correctly appreciates the applicable law, the court will properly recognize a wide discretion in the application of those principles to the particular facts. The same approach is taken to less exalted decision makers (Moreau-Bérubé v. New Brunswick (Judicial Council), [2002] 1 S.C.R. 249, 2002 SCC 11). In the jargon of the judicial review bar, this is known as "segmentation". G. The Existence of a Privative Clause 143 The existence of a privative clause is currently subsumed within the "pragmatic and functional" test as one factor amongst others to be considered in determining the appropriate standard of review, where it supports the choice of the patent unreasonableness standard. A single standard of "reasonableness" cannot mean that the degree of deference is unaffected by the existence of a suitably worded privative clause. It is certainly a relevant contextual circumstance that helps to calibrate the intrusiveness of a court's review. It signals the level of respect that must be shown. Chief Justice Laskin during argument once memorably condemned the quashing of a labour board decision protected by a strong privative clause, by saying "what's wrong with these people [the judges], can't they read?" A system of judicial review based on the rule of law ought not to treat a privative clause as conclusive, but it is more than just another "factor" in the hopper of pragmatism and functionality. Its existence should presumptively foreclose judicial review on the basis of outcome on substantive grounds unless the applicant can show that the [page259] clause, properly interpreted, permits it or there is some legal reason why it cannot be given effect. H. A Broader Reappraisal 144 "Reasonableness" is a big tent that will have to accommodate a lot of variables that inform and limit a court's review of the outcome of administrative decision making. 145 The theory of our recent case law has been that once the appropriate standard of review is selected, it is a fairly straightforward matter to apply it. In practice, the criteria for selection among "reasonableness" standards of review proved to be undefinable and their application unpredictable. The present incarnation of the "standard of review" analysis requires a threshold debate about the four factors (non-exhaustive) which critics say too often leads to unnecessary delay, uncertainty and costs as arguments rage before the court about balancing expertise against the "real" nature of the question before the administrator, or whether the existence of a privative clause trumps the larger statutory purpose, and so on. And this is all mere preparation for the argument about the actual substance of the case. While a measure of uncertainty is inherent in the subject matter and unavoidable in litigation (otherwise there wouldn't be any), we should at least (i) establish some Page 48 424 presumptive rules and (ii) get the parties away from arguing about the tests and back to arguing about the substantive merits of their case. 146 The going-in presumption should be that the standard of review of any administrative outcome on grounds of substance is not correctness but reasonableness ("contextually" applied). The fact that the legislature designated someone other than the court as the decision maker calls for deference to (or judicial respect for) the outcome, absent a broad statutory right of appeal. Administrative decisions generally call for the exercise of discretion. Everybody recognizes in such cases that there is no single "correct" outcome. It should also be [page260] presumed, in accordance with the ordinary rules of litigation, that the decision under review is reasonable until the applicant shows otherwise. 147 An applicant urging the non-deferential "correctness" standard should be required to demonstrate that the decision under review rests on an error in the determination of a legal issue not confided (or which constitutionally could not be confided) to the administrative decision maker to decide, whether in relation to jurisdiction or the general law. Labour arbitrators, as in this case, command deference on legal matters within their enabling statute or on legal matters intimately connected thereto. 148 When, then, should a decision be deemed "unreasonable"? My colleagues suggest a test of irrationality (para. 46), but the editors of de Smith point out that "many decisions which fall foul of [unreasonableness] have been coldly rational" (de Smith, Woolf & Jowell: Judicial Review of Administrative Action (5th ed. 1995), at para. 13-003). A decision meeting this description by this Court is C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29, where the Minister's appointment of retired judges with little experience in labour matters to chair "interest" arbitrations (as opposed to "grievance" arbitrations) between hospitals and hospital workers was "coldly rational" in terms of the Minister's own agenda, but was held by a majority of this Court to be patently unreasonable in terms of the history, object and purpose of the authorizing legislation. He had not used the appointment power for the purposes for which the legislature had conferred it. 149 Reasonableness rather than rationality has been the traditional standard and, properly interpreted, it works. That said, a single "reasonableness" standard will now necessarily incorporate both the degree of deference formerly reflected in the distinction between patent unreasonableness and reasonableness simpliciter, and an assessment [page261] of the range of options reasonably open to the decision maker in the circumstances, in light of the reasons given for the decision. Any reappraisal of our approach to judicial review should, I think, explicitly recognize these different dimensions to the "reasonableness" standard. I. Judging "Reasonableness" 150 I agree with my colleagues that "reasonableness" depends on the context. It must be calibrated to fit the circumstances. A driving speed that is "reasonable" when motoring along a four-lane interprovincial highway is not "reasonable" when driving along an inner city street. The Page 49 425 standard ("reasonableness") stays the same, but the reasonableness assessment will vary with the relevant circumstances. 151 This, of course, is the nub of the difficulty. My colleagues write: In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [para. 47] I agree with this summary but what is required, with respect, is a more easily applied framework into which the judicial review court and litigants can plug in the relevant context. No one doubts that in order to overturn an administrative outcome on grounds of substance (i.e. leaving aside errors of fairness or law which lie within the supervising "function" of the courts), the reviewing court must be satisfied that the outcome was outside the scope of reasonable responses open to the decision maker under its grant of authority, usually a statute. "[T]here is always a perspective", observed Rand J., "within which a statute is intended [by the legislature] to operate": Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 140. How is that "perspective" to be ascertained? The reviewing judge will obviously want to consider the precise nature and function of the decision maker including its expertise, the terms and objectives of the governing statute (or common law) conferring the power of decision, including [page262] the existence of a privative clause and the nature of the issue being decided. Careful consideration of these matters will reveal the extent of the discretion conferred, for example, the extent to which the decision formulates or implements broad public policy. In such cases, the range of permissible considerations will obviously be much broader than where the decision to be made is more narrowly circumscribed, e.g., whether a particular claimant is entitled to a disability benefit under governmental social programs. In some cases, the court will have to recognize that the decision maker was required to strike a proper balance (or achieve proportionality) between the adverse impact of a decision on the rights and interests of the applicant or others directly affected weighed against the public purpose which is sought to be advanced. In each case, careful consideration will have to be given to the reasons given for the decision. To this list, of course, may be added as many "contextual" considerations as the court considers relevant and material. 152 Some of these indicia were included from the outset in the pragmatic and functional test itself (see Bibeault, at p. 1088). The problem, however, is that under Bibeault, and the cases that followed it, these indicia were used to choose among the different standards of review, which were themselves considered more or less fixed. In Law Society of New Brunswick v. Ryan, for example, the Court rejected the argument that "it is sometimes appropriate to apply the reasonableness standard more deferentially and sometimes less deferentially depending on the circumstances" (para. 43). It seems to me that collapsing everything beyond "correctness" into a single "reasonableness" standard will require a reviewing court to do exactly that. Page 50 426 153 The Court's adoption in this case of a single "reasonableness" standard that covers both the degree of deference assessment and the reviewing court's evaluation, in light of the appropriate degree of deference, of whether the decision falls within a range of reasonable administrative choices will require a reviewing court to juggle a number of variables that are necessarily to be considered [page263] together. Asking courts to have regard to more than one variable is not asking too much, in my opinion. In other disciplines, data are routinely plotted simultaneously along both an X axis and a Y axis, without traumatizing the participants. 154 It is not as though we lack guidance in the decided cases. Much has been written by various courts about deference and reasonableness in the particular contexts of different administrative situations. Leaving aside the "pragmatic and functional" test, we have ample precedents to show when it is (or is not) appropriate for a court to intervene in the outcome of an administrative decision. The problem is that courts have lately felt obliged to devote too much time to multi-part threshold tests instead of focussing on the who, what, why and wherefor of the litigant's complaint on its merits. 155 That having been said, a reviewing court ought to recognize throughout the exercise that fundamentally the "reasonableness" of the outcome is an issue given to others to decide. The exercise of discretion is an important part of administrative decision making. Adoption of a single "reasonableness" standard should not be seen by potential litigants as a lowering of the bar to judicial intervention. J. Application to This Case 156 Labour arbitrators often have to juggle different statutory provisions in disposing of a grievance. The courts have generally attached great importance to their expertise in keeping labour peace. In this case, the adjudicator was dealing with his "home statute" plus other statutes intimately linked to public sector relations in New Brunswick. He was working on his "home turf", and the legislature has made clear in the privative clause that it intended the adjudicator to determine the outcome of the appellant's grievance. In this field, quick and cheap justice (capped by finality) advances the achievement of the legislative scheme. Recourse to judicial review is discouraged. I would therefore apply a reasonableness standard to the adjudicator's [page264] interpretation of his "home turf" statutory framework. 157 Once under the flag of reasonableness, however, the salient question before the adjudicator in this case was essentially legal in nature, as reflected in the reasons he gave for his decision. He was not called on to implement public policy; nor was there a lot of discretion in dealing with a non-unionized employee. The basic facts were not in dispute. He was disposing of a lis which he believed to be governed by the legislation. He was right to be conscious of the impact of his decision on the appellant, but he stretched the law too far in coming to his rescue. I therefore join with my colleagues in dismissing the appeal. The reasons of Deschamps, Charron and Rothstein JJ. were delivered by Page 51 427 158 DESCHAMPS J.:-- The law of judicial review of administrative action not only requires repairs, it needs to be cleared of superfluous discussions and processes. This area of the law can be simplified by examining the substance of the work courts are called upon to do when reviewing any case, whether it be in the context of administrative or of appellate review. Any review starts with the identification of the questions at issue as questions of law, questions of fact or questions of mixed fact and law. Very little else needs to be done in order to determine whether deference needs to be shown to an administrative body. 159 By virtue of the Constitution, superior courts are the only courts that possess inherent jurisdiction. They are responsible both for applying the laws enacted by Parliament and the legislatures and for insuring that statutory bodies respect their legal boundaries. Parliament and the legislatures cannot totally exclude judicial oversight without overstepping the division between legislative or executive powers and judicial powers. Superior courts are, in the end, the protectors of the integrity of the rule of law and the justice system. [page265] Judicial review of administrative action is rooted in these fundamental principles and its boundaries are largely informed by the roles of the respective branches of government. 160 The judicial review of administrative action has, over the past 20 years, been viewed as involving a preliminary analysis of whether deference is owed to an administrative body based on four factors: (1) the nature of the question, (2) the presence or absence of a privative clause, (3) the expertise of the administrative decision maker and (4) the object of the statute. The process of answering this preliminary question has become more complex than the determination of the substantive questions the court is called upon to resolve. In my view, the analysis can be made plainer if the focus is placed on the issues the parties need to have adjudicated rather than on the nature of the judicial review process itself. By focusing first on "the nature of the question", to use what has become familiar parlance, it will become apparent that all four factors need not be considered in every case and that the judicial review of administrative action is often not distinguishable from the appellate review of court decisions. 161 Questions before the courts have consistently been identified as either questions of fact, questions of law or questions of mixed fact and law. Whether undergoing appellate review or administrative law review, decisions on questions of fact always attract deference. The use of different terminology -- "palpable and overriding error" versus "unreasonable decision" -- does not change the substance of the review. Indeed, in the context of appellate review of court decisions, this Court has recognized that these expressions as well as others all encapsulate the same principle of deference with respect to a trial judge's findings of fact: H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25, at paras. 55-56. Therefore, when the issue is limited to questions of fact, there is no need to enquire into any other factor in order to determine that deference is owed to an administrative decision maker. 162 Questions of law, by contrast, require more thorough scrutiny when deference is evaluated, [page266] and the particular context of administrative decision making can make judicial review Page 52 428 different than appellate review. Although superior courts have a core expertise to interpret questions of law, Parliament or a legislature may have provided that the decision of an administrative body is protected from judicial review by a privative clause. When an administrative body is created to interpret and apply certain legal rules, it develops specific expertise in exercising its jurisdiction and has a more comprehensive view of those rules. Where there is a privative clause, Parliament or a legislature's intent to leave the final decision to that body cannot be doubted and deference is usually owed to the body. 163 However, privative clauses cannot totally shield an administrative body from review. Parliament, or a legislature, cannot have intended that the body would be protected were it to overstep its delegated powers. Moreover, if such a body is asked to interpret laws in respect of which it does not have expertise, the constitutional responsibility of the superior courts as guardians of the rule of law compels them to insure that laws falling outside an administrative body's core expertise are interpreted correctly. This reduced deference insures that laws of general application, such as the Constitution, the common law and the Civil Code, are interpreted correctly and consistently. Consistency of the law is of prime societal importance. Finally, deference is not owed on questions of law where Parliament or a legislature has provided for a statutory right of review on such questions. 164 The category of questions of mixed fact and law should be limited to cases in which the determination of a legal issue is inextricably intertwined with the determination of facts. Often, an administrative body will first identify the rule and then apply it. Identifying the contours and the content of a legal rule are questions of law. Applying the rule, however, is a question of mixed fact and law. When considering a question of mixed fact and law, a reviewing court should show an adjudicator the same deference as an appeal court would show a lower court. [page267] 165 In addition, Parliament or a legislature may confer a discretionary power on an administrative body. Since the case at bar does not concern a discretionary power, it will suffice for the purposes of these reasons to note that, in any analysis, deference is owed to an exercise of discretion unless the body has exceeded its mandate. 166 In summary, in the adjudicative context, the same deference is owed in respect of questions of fact and questions of mixed fact and law on administrative review as on an appeal from a court decision. A decision on a question of law will also attract deference, provided it concerns the interpretation of the enabling statute and provided there is no right of review. 167 I would be remiss were I to disregard the difficulty inherent in any exercise of deference. In Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63, LeBel J. explained why a distinction between the standards of patent unreasonableness and unreasonableness simpliciter is Page 53 429 untenable. I agree. The problem with the definitions resides in attempts by the courts to enclose the concept of reasonableness in a formula fitting all cases. No matter how this Court defines this concept, any context considered by a reviewing court will, more often than not, look more like a rainbow than a black and white situation. One cannot change this reality. I use the word "deference" to define the contours of reasonableness because it describes the attitude adopted towards the decision maker. The word "reasonableness" concerns the decision. However, neither the concept of reasonableness nor that of deference is particular to the field of administrative law. These concepts are also found in the context of criminal and civil appellate review of court decisions. Yet, the exercise of the judicial supervisory role in those fields has not given rise to the complexities encountered in administrative law. The process of stepping back and taking an ex post facto look at the decision to determine whether there is an error justifying intervention should not be more [page268] complex in the administrative law context than in the criminal and civil law contexts. 168 In the case at bar, the adjudicator was asked to adjudicate the grievance of a non-unionized employee. This meant that he had to identify the rules governing the contract. Identifying those rules is a question of law. Section 20 of the Civil Service Act, S.N.B. 1984, c. C-5.1, incorporates the rules of the common law, which accordingly become the starting point of the analysis. The adjudicator had to decide whether those rules had been ousted by the Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25 ("PSLRA"), as applied, mutatis mutandis, to the case of a non-unionized employee (ss. 97(2.1), 100.1(2) and 100.1(5)). The common law rules relating to the dismissal of an employee differ completely from the ones provided for in the PSLRA that the adjudicator is regularly required to interpret. Since the common law, not the adjudicator's enabling statute, is the starting point of the analysis, and since the adjudicator does not have specific expertise in interpreting the common law, the reviewing court does not have to defer to his decision on the basis of expertise. This leads me to conclude that the reviewing court can proceed to its own interpretation of the rules applicable to the non-unionized employee's contract of employment and determine whether the adjudicator could enquire into the cause of the dismissal. The applicable standard of review is correctness. 169 It is clear from the adjudicator's reasoning that he did not even consider the common law rules. He said: An employee to whom section 20 of the Civil Service Act and section 100.1 of the PSLR Act apply may be discharged for cause, with reasonable notice or with severance pay in lieu of reasonable notice. A discharge for cause may be for disciplinary or non-disciplinary reasons. [p. 5] 170 The employer's common law right to dismiss without cause is not alluded to in this key passage of the decision. Unlike a unionized employee, a non-unionized employee does not have employment security. His or her employment may be terminated without cause. The corollary of the [page269] employer's right to dismiss without cause is the employee's right to reasonable notice or to compensation in lieu of notice. The distinction between the common law rules of employment Page 54 430 and the statutory rules applicable to a unionized employee is therefore essential if s. 97(2.1) is to be applied mutatis mutandis to the case of a non-unionized employee as required by s. 100.1(5). The adjudicator's failure to inform himself of this crucial difference led him to look for a cause, which was not relevant in the context of a dismissal without cause. In a case involving dismissal without cause, only the amount of the compensation or the length of the notice is relevant. In a case involving dismissal for cause, the employer takes the position that no compensation or notice is owed to the employee. This was not such a case. In the case at bar, the adjudicator's role was limited to evaluating the length of the notice. He erred in interpreting s. 97(2.1) in a vacuum. He overlooked the common law rules, misinterpreted s. 100.1(5) and applied s. 97(2.1) literally to the case of a non-unionized employee. 171 This case is one where, even if deference had been owed to the adjudicator, his interpretation could not have stood. The legislature could not have intended to grant employment security to non-unionized employees while providing only that the PSLRA was to apply mutatis mutandis. This right is so fundamental to an employment relationship that it could not have been granted in so indirect and obscure a manner. 172 In this case, the Court has been given both an opportunity and the responsibility to simplify and clarify the law of judicial review of administrative action. The judicial review of administrative action need not be a complex area of law in itself. Every day, reviewing courts decide cases raising multiple questions, some of fact, some of mixed fact and law and some purely of law; in various contexts, the first two of these types of questions tend to require deference, while the third often does not. Reviewing courts are already amply equipped to resolve such questions and do not need a specialized analytical toolbox in order to review administrative decisions. [page270] 173 On the issue of natural justice, I agree with my colleagues. On the result, I agree that the appeal should be dismissed. * * * * * APPENDIX Relevant Statutory Provisions Civil Service Act, S.N.B. 1984, c. C-5.1 20 Subject to the provisions of this Act or any other Act, termination of the employment of a deputy head or an employee shall be governed by the ordinary rules of contract. Page 55 431 Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25 92(1) Where an employee has presented a grievance up to and including the final level in the grievance process with respect to (a) the interpretation or application in respect of him of a provision of a collective agreement or an arbitral award, or (b) disciplinary action resulting in discharge, suspension or a financial penalty, and his grievance has not been dealt with to his satisfaction, he may, subject to subsection (2), refer the grievance to adjudication. Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25, as amended 97(2.1) Where an adjudicator determines that an employee has been discharged or otherwise disciplined by the employer for cause and the collective agreement or arbitral award does not contain a specific penalty for the infraction that resulted in the employee being discharged or otherwise disciplined, the adjudicator may substitute such other penalty for the discharge or discipline as to the adjudicator seems just and reasonable in all the circumstances. ... 100.1(2) An employee who is not included in a bargaining unit may, in the manner, form and within such time as may be prescribed, present to the employer a [page271] grievance with respect to discharge, suspension or a financial penalty. 100.1(3) Where an employee has presented a grievance in accordance with subsection (2) and the grievance has not been dealt with to the employee's satisfaction, the employee may refer the grievance to the Board who shall, in the manner and within such time as may be prescribed, refer the grievance to an adjudicator appointed by the Board. ... Page 56 432 100.1(5) Sections 19, 97, 98.1, 101, 108 and 111 apply mutatis mutandis to an adjudicator to whom a grievance has been referred in accordance with subsection (3) and in relation to any decision rendered by such adjudicator. ... 101(1) Except as provided in this Act, every order, award, direction, decision, declaration or ruling of the Board, an arbitration tribunal or an adjudicator is final and shall not be questioned or reviewed in any court. 101(2) No order shall be made or process entered, and no proceedings shall be taken in any court, whether by way of injunction, judicial review, or otherwise, to question, review, prohibit or restrain the Board, an arbitration tribunal or an adjudicator in any of its or his proceedings. Solicitors: Solicitors for the appellant: Stewart McKelvey, Fredericton. Solicitor for the respondent: Attorney General of New Brunswick, Fredericton. cp/e/qllls Page 57 433 434 Decision No.: 2012-PT-01 Issued at: Ottawa, Ontario February 8, 2012 In the Matter of an Application by the Public Sector Integrity Commissioner of Canada to the Public Servants Disclosure Protection Tribunal BETWEEN: CHARBEL EL-HELOU Complainant -and- OFFICE OF THE PUBLIC SECTOR INTEGRITY COMMISSIONER Commissioner -and- COURTS ADMINISTRATION SERVICE Employer -and- DAVID POWER Individual Respondent -and- ÉRIC DELAGE Individual Respondent DECISION ON THE TWO MOTIONS TO CONTINUE THE INTERIM CONFIDENTIALITY ORDER 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 435 Page: 2 [1] This decision disposes of two motions brought by the two individual respondents and three interested parties. Both motions relate to the continuation of the interim confidentiality order, issued by the Public Servants Disclosure Protection Tribunal (the Tribunal), dated June 10, 2011. [2] The continuation of this confidentiality order is being requested in relation to the hearing of an Application launched by the Public Sector Integrity Commissioner (the Commissioner) under subsection 20.4 of the Public Servants Disclosure Protection Act, SC 2005, c 46 (the Act) before the Tribunal. [3] The individual respondents are David Power and Éric Delage. The interested parties are Laurent Francoeur, Eric Cloutier and Francine Côté. The individual respondents and the interested parties are the moving parties on these motions. They filed their motions on July 15, 2011 and request that this Tribunal continue its June 10, 2011 interim confidentiality order. [4] On August 12, 2011 the employer states that it supported the motion for the continuation of the interim confidentiality order. On the same date, the Commissioner indicates that he does not oppose the motion for a confidentiality order, subject to a number of comments. [5] In his response, dated August 12, 2011, the complainant opposes the motion. 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 436 Page: 3 I. BACKGROUND [6] The complainant filed his initial complaint with the Office of the Public Sector Integrity Commissioner (OPSIC), dated July 3, and July 9, 2009. He identified four allegations of reprisal relating to the solicitation of negative feedback about him from his subordinates; a change in his employment responsibilities through a temporary transfer; the withholding of his security certificate; and harassment. The OPSIC investigator withdrew the issue of harassment, with the complainant’s consent, after the commencement of the investigation. [7] The OPSIC determined that it would deal with the complaint. The Senior Investigator concluded that there were reasonable grounds for believing that reprisal was taken against the complainant with respect to one allegation only, relating to withholding his Top Secret security clearance. The Commissioner accepted the findings and recommendations contained in the report of the Senior Investigator, dated April 14, 2011. [8] On May 16, 2011, the Commissioner filed an Application to the Tribunal (the Application) for a determination as to whether reprisal was taken against the complainant. In the Application, the Commissioner determined that there were sufficient grounds to proceed with only one of the three allegations that were investigated. The Application also stated that, should the Tribunal find that a reprisal was taken against the complainant, the Commissioner intends to seek an order respecting a remedy in favour of the complainant, and an order respecting disciplinary action against the person or persons alleged to have taken a reprisal. 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 437 Page: 4 Commissioner’s request for an interim confidentiality order [9] The request for an interim confidentiality order was initially filed by the Commissioner and not from the moving parties in this matter (i.e. the individual respondents and the interested parties). On the date that he filed the Application, the Commissioner also filed a notice of motion for an order declaring certain parts of the Application confidential, namely Appendices A and B. These appendices contain documents provided to OPSIC by the complainant with regard to the reprisal complaint, including allegations that were not filed in the Application itself. They contain allegations made against persons whose conduct was found not to be at fault by the Commissioner. In addition, they contain references to a security investigation conducted by the employer with regard to threats made against a member of the judiciary. The motion for an order of confidentiality from the Commissioner requested that the two appendices of the Application be filed in a sealed envelope and marked as confidential evidence. [10] On June 1, 2011, Laurent Francoeur, Francine Côté and Eric Cloutier brought a notice of motion for interested party status with respect to the Commissioner’s motion for an order of confidentiality. These three individuals were mentioned in the appendices and were not found to be at fault in the Application filed by the Commissioner. [11] On June 2, 2011, the individual respondents responded to the Commissioner’s motion and requested a reformulation of the third paragraph of the proposed order. (That paragraph stated that the order would not affect any right of the complainant, by virtue of his having been the original author of those documents.) 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 438 Page: 5 [12] On June 6, 2011, the complainant responded to the Commissioner’s motion for an order of confidentiality, opposing it. He disputed the need for a blanket confidentiality order. He did not object to an order that would ensure that the name of the member of the judiciary be kept confidential and stated that the most effective way to accomplish this would be through redaction in the documents already filed in the proceedings and in any other documents. He submitted however, that the request for a confidentiality order is too broad. Commissioner’s request for a publication ban [13] On June 6, 2011, the Commissioner filed his statement of particulars and a second notice of motion, this time for a publication ban on any information that could identify both the member of the judiciary and the person or persons suspected of making threats or alleged to have made threats against the member of the judiciary. The Commissioner clarified that the motion for a publication ban is an additional request. It is not a replacement for the earlier motion for a confidentiality order. Tribunal orders prior to this motion [14] On June 10, 2011, the Tribunal granted interested party status to Francine Côté, Laurent Francoeur and Eric Cloutier with respect to the motion for an interim confidentiality order. The Tribunal also granted an interim publication ban on any information that could identify the member of the judiciary and the person or persons suspected of making threats or alleged to have made threats. 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 439 Page: 6 [15] On June 10, 2011, the Tribunal also issued the following interim confidentiality order. As detailed in the section below, the moving parties request a continuation of the terms of this particular order. It reads as follows: 1) The documents marked as Appendices A and B to the Commissioner's Notice of Application to the Tribunal, dated April 18, 2011 and filed with the Tribunal on May 17, 2011, shall be kept sealed and separate from the public records and not be disclosed to anyone other than the Members and Staff of the Tribunal and the parties and their counsel, until the Commissioner’s motion can be disposed of by the Tribunal or until such time as the Tribunal orders otherwise; and 2) The Tribunal may rescind, amend or vary this interim order at any time for cause upon the initiative of the Tribunal or on motion. Moving parties request for the continuation of the interim confidentiality order [16] On July 4, 2011, the OPSIC notified the parties to this matter of its intention to withdraw the motion for a confidentiality order at the hearing pertaining to jurisdiction, which was to be held on August 31, 2011. The individual respondents subsequently filed a notice of motion for the continuation of the terms of that order, dated June 10, 2011. Mr. Francoeur, Ms. Côté and Mr. Cloutier, the interested parties in relation to the Commissioner’s motion for an interim confidentiality order, also filed a motion requesting the continuation of the terms of the order. [17] The Commissioner stated that it did not oppose the motion, though he made some observations with regard to it. The employer stated that it consented to the motion in respect of 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 440 Page: 7 the continuation of the interim confidentiality order. It also stated that it consented to the Commissioner’s motion for the continuation of the publication ban. [18] The complainant opposed this motion for the continuation of the interim confidentiality order. He stated that the moving parties failed to provide sufficient evidence to establish its necessity and could not to justify limiting the open court principle, protected by the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982, c11 (the Charter). Tribunal’s issuance of a publication ban and order for interested parties’ status [19] On August 23, 2011, the Tribunal also issued an order for the status of interested parties in relation to the motion for the continuation of the interim confidentiality order to Laurent Francoeur, Eric Cloutier and Francine Côté. [20] While not part of the present motion, it is important to remember that on August 23, 2011 the Tribunal issued a publication ban, which is still in effect. That ban pertained to materials relating to a member of the judiciary, and a person suspected of making threats against this person. II. ARGUMENTS OF THE PARTIES [21] The moving parties refer to Rule 5(c) of the Interim Rules of the Tribunal, now Rule 5(c) of the Public Servants Disclosure Protection Tribunal Rules of Procedure, SOR/2011-170 (the Tribunal Rules). That rule states that the original complaint must be submitted with the Application. 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 441 Page: 8 [22] They state that the complaint refers to alleged wrongdoings that are not within the OPSIC’s authority to investigate; to numerous allegations of reprisal by various individuals; and to extensive documentation that the complainant believed was relevant to his complaint. They note that only one of the allegations of reprisal was referred to the Tribunal. [23] They submit that privacy and confidentiality obligations apply to this situation because Appendices A and B raise questions as to the conduct of the interested parties and the two individual respondents. In addition, they submit that the information in the complaint is personal information because it is identifiable information that is recorded in any form, including the views or opinions of another individual about the identifiable individual. They argue therefore, that the Tribunal has an obligation to comply with legislative requirements pertaining to personal information and that a confidentiality order is necessary. They state that, as government institutions, both the Registry of the Public Servants Disclosure Protection Tribunal and the OPSIC are subject to the Privacy Act, RSC, 1985, c P-21 (Privacy Act). [24] They refer to section 8 of the Privacy Act, which provides that personal information under the control of a government institution shall not be disclosed by that institution without the consent of the individual to whom the personal information relates, subject to enumerated exceptions. They argue that the enumerated exceptions under the Privacy Act do not apply. They submit, for example, that disclosure by OPSIC or by the Tribunal of any personal information contained in the complaint that relates only to unfounded allegations cannot be considered disclosure for the purposes for which the information was obtained. Referring to subparagraph 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 442 Page: 9 8(2) (m) of the Privacy Act, they also argue that the public interest in disclosure of the personal information contained in Appendices A and B does not outweigh the invasion of privacy that would result from such disclosure. [25] The moving parties state that the personal information in question is not relevant and would be of limited value in the public interest in open court. They also refer to the fact that they are career public servants, and that the disclosure of the complainant’s views of them may have indeterminable negative consequences on their reputations. [26] Alternatively, they submit that even if the Privacy Act does not require the continuation of the interim confidentiality order, well-established reasonable limits to the open court principle apply and the salutary effects of a confidentiality order outweigh its deleterious effects (Dagenais v Canadian Broadcasting Corp, [1994] 2 SCR 835; R v Mentuck [2001] 3 SCR 442; Sierra Club of Canada v Canada (Minister of Finance), [2002] 2 SCR 522). [27] The moving parties state that there is a serious risk to an important interest because there is the potential for damage to the personal and professional reputations of the interested parties. They state that the Commissioner’s obligation under the Tribunal Rules, to provide a copy of the complaint, must be read in the context of the commitment to maintaining confidentiality to the extent possible for all persons involved in the disclosure process. [28] They argue that confidentiality is a key component of the Act. They refer to subsection 22(e) of the Act, which requires the Commissioner to protect the identity of persons involved in 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 443 Page: 10 the disclosure process, including that of persons making decisions, witnesses and persons alleged to be responsible for wrongdoing. They also highlight section 44, which requires that the Commissioner and every person acting on his behalf, not disclose any information that comes to their knowledge in the performance of their duties under the Act. [29] They submit that the order in question is narrow, with no reasonable alternatives. They state for example, that expunging the content at issue would be impractical and would not allow for a readable and redacted version of the document in question. They state that the order sought pertains only to allegations that were submitted by the complainant but which were not found to be valid by the Commissioner and which are irrelevant to the proceedings before the Tribunal. In support of the motion, the moving parties include several documents in the form of affidavits. [30] The complainant opposes the motion. Although he takes the position that he would not object, in principle, to steps to protect certain confidential information, he argues that these steps must be shown to be necessary and not to outweigh the negative effect of such measures. He submits that in the present case the interested parties have failed to provide sufficient evidence to justify the order. [31] He asserts that the order represents a sweeping incursion upon the interest of both the public and the parties and that this cannot outweigh the significant public interest in open proceedings under the Act. He asserts that the parties’ reliance on concerns with respect to their personal and professional reputations and future career opportunities are speculative. 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 444 Page: 11 [32] The complainant also states that the Act was passed for the express purpose of fostering transparency and furthering the public interest in maintaining and enhancing public confidence in the integrity of the public service. He refers to the preamble, which states that the Act is intended to protect the public interest and play a central role in the protection and promotion of Canadian parliamentary democracy, in encouraging employees to disclose wrongdoing and in discouraging processes that might otherwise be employed to cover up wrongdoing or prevent disclosure. [33] The complainant disputes a blanket prohibition of disclosure of information as “a rare and blunt instrument”, to be used only in the clearest of cases. He refers to the open court principle and the test applied to determine whether to limit this fundamental aspect of the justice system (Mentuck; Sierra Club; Singer v Canada (Attorney General), 2011 FCA 3 (Singer); and Named Person v Vancouver Sun, [2007] 3 SCR 253 (Named Person). He argues that the courts have repeatedly held that the confidentiality of proceedings will not be ordered based on bald assertions of the need for such protection. Parties requesting an order for confidentiality bear a heavy onus and must present evidence demonstrating a clear need for such an order (Rivard Instruments Inc v Ideal Instruments Inc, 2006 FC 1338 at paragraph 2 (Rivard); Canada (Attorney General) v Almalki, 2010 FC 733 at paragraph 17 (Almalki). The complainant also refers to John Doe v Canada (Minister of Justice) 2003 FCT 117 (John Doe 2003) and John Doe v Canada (Minister of Justice), 2008 FC 916 (John Doe 2008) in support of his position that the evidence to support a confidentiality order is insufficient. [34] He disputes the argument that public disclosure could compromise an investigation and that there is a great likelihood that the publication of the complainant’s allegations would cause 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 445 Page: 12 damage to personal and professional reputations. He also refers to Mentuck, where the Supreme Court of Canada emphasized the high societal value placed on the presumption that courts should be open; that their proceedings should be uncensored; and that the judge must have a convincing basis in evidence for issuing a ban. [35] He also notes that in Mentuck, the Court was faced with an argument that specific aspects of an undercover police operation might be disclosed in the trial process. In that case, far more serious than the present one, in the complainant’s view, the ban was not granted. In Mentuck, the Court also noted that the Crown’s affidavit evidence was only able to positively identify one example of a negative impact resulting from a publication ban. [36] The complainant reiterates that the Tribunal is intended to address incidents of reprisal where persons disclose wrongdoing in the federal public service. The issues raised by a case under the Act are of the highest public importance. He argues that not only must the outcome be fair and substantively proper, but that it must also be seen to be fair and proper. [37] He emphasizes that the two documents which the interested parties seek to maintain as confidential comprise the complainant’s actual complaint of reprisal. He asserts that these documents are akin to a statement of claim or a notice of application or a similar originating process or pleading which sets out the essence of the case. Referring to Mentuck, which arose in the context of a criminal proceeding, he submits that the public interest in the nature and outcome of these proceedings is no different. 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 446 Page: 13 [38] He states that the type of order sought is highly unusual and extraordinary, and points to the fact that individuals who are the subject of allegations are routinely referred to by name in many proceedings, even where those allegations have been dismissed on a final basis. In the complainant’s view, it is an error to state that allegations submitted by the complainant, but which were not found to be substantiated by the Commissioner, are irrelevant to the proceedings before the Tribunal. Evidence of context, he argues, may be relevant and admissible. In addition, he submits that the position of the moving party is premature. [39] The complainant submits that the Privacy Act does not compel the Tribunal to abandon its own statutory purpose of fostering transparency for the purposes of the public interest. He states that exceptions under the Privacy Act apply, including subparagraph 8(2)(a) (consistent use exception), subparagraph 8(2)(b) (in accordance with an Act of Regulation authorizing its disclosure), and subparagraph 8(2)(m) (public interest exception). [40] The Commissioner does not oppose the motion brought by the interested parties, but makes some qualified statements as to his support. He notes that he filed a motion for a similar order on May 17, 2011 and that interim order was granted by the Tribunal on June 10, 2011. The Commissioner states that his primary concern was with prejudicial information being made public without a proper evidentiary and contextual basis. In his response the Commissioner states that his Statement of Particulars and disclosure of evidence, including the investigation report, provide a more comprehensive context to the public and the information is less likely to harm the individuals concerned. 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 447 Page: 14 [41] He also notes that he advised the Tribunal and the parties that he would be withdrawing his motion on July 4, 2011. He affirms the importance of public and media access to the Tribunal. Referring to sections 22(e) and 44 of the Act, he observes that the filing of information that would otherwise be confidential is permitted for the purpose of making an Application to the Tribunal. However, he states that he generally agrees with the formulation of the Dagenais/Mentuck test as stated in the Notice of Motion in support of the confidentiality order. III. ANALYSIS Overview [42] In the present motion, the individual respondents and the interested parties seek a continuation of the terms of the interim confidentiality order, issued by this Tribunal. They argue that the Privacy Act applies to limit the disclosure of material in Appendices A and B. In the alternative, they submit that this Tribunal ought to exercise its discretion, in accordance with the principles enunciated in Dagenais, Mentuck and Sierra Club, to limit the open court principle and to allow the terms of the order to continue. [43] Both the Commissioner and the employer indicate their support of the motions brought by the moving parties. The complainant opposes them. He submits that the open court principle applies, with only limited exceptions. He refers to the purpose of the Act to support his position that there is insufficient evidence upon which to limit the principle in this case. He also submits that the basis upon which the order is requested is speculative. [44] The open court principle is considered a cornerstone of a democratic society. 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 448 Page: 15 Nonetheless, it is not absolute. Protective orders that limit openness can come in a variety of forms: confidentiality orders, publication bans, orders for redacted or depersonalized versions of a pleading or other document supporting a legal proceeding, a requirement that a document be “for counsel’s eyes only”, an order requiring that a proceeding be held in camera, and informant privilege. [45] In this decision, the Tribunal is requested to continue an interim confidentiality order, which would also have the effect of limiting the openness of its proceedings. Important interests are at the heart of this question. In order to provide a context for why these motions must be denied, this Tribunal will review the basic precepts of the open court principle in relation to judicial and quasi-judicial proceedings, in relation to sensitivities with personal information in the public domain, and in relation to the nature of this Act and the mandate of this Tribunal in disclosure and reprisal complaints. The open court principle [46] The open court principle has been repeatedly recognized in Canadian courts. Long before the passage of the Charter, the Supreme Court of Canada conveyed the importance of openness in court proceedings. Covertness in proceedings is an exception, and to be exercised with care. Justice must not only be done, but also must be seen to be done. Hence, there is a presumption that court proceedings should be a matter of public record. (See for example Dagenais; Mentuck; Sierra Club; Named Person; and Almalki. See also Nova Scotia (Attorney General) v MacIntyre, [1982] 1 SCR 175, which is referred to in Almalki) 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 449 Page: 16 [47] The courts do not operate in secret, as Justice Rothstein, as he then was, stated in Sulco Industry Ltd v Jim Scharf Holdings Ltd (1997), 69 CPR (3d) 71 at page 73 (Sulco Industry). The courts must exercise restraint in granting orders that limit information before the court, although there will be exceptions (involving, for example, trade secrets and other types of confidential information that may require a sealing order) (See John Doe 2003 at paragraph 3, which refers to Sulco Industry). Where the confidentiality of proceedings is ordered without justification, the integrity of judicial proceedings can be compromised, essentially throwing the court back into the times of the notorious Star Chamber Court (See John Doe 2003 at paragraphs 2 and 3). [48] One of the critical objectives of the open court principle is to foster the pursuit of truth. An open examination of witnesses’ oral testimony is “more conducive to the clearing up of truth than the private and secret examination taken down in writing before an officer, or his clerk.” (Blackstone Commentaries on the Laws of England (1768) cited in Named Person at paragraph 82). As noted by Wigmore, (Wigmore on Evidence, vol. 6 (Chadbourn rev. 1976), § 1834, at pp. 435-36 and cited in Named Person, at paragraph 82), the operation of the open court principle improves the quality of testimony generally. It produces “in the witness’ mind a disinclination to falsify; first by stimulating the instinctive responsibility to public opinion, symbolized in the audience (…).” It also objectively “secures the presence of those who by possibility may be able to furnish testimony in chief or to contradict falsifiers and yet may not have been known beforehand to the parties to possess any information”. [49] Evidence, including testimony of named witnesses, is important in the proceedings, as are documents that support the testimony. Generally, witnesses and parties are identified in judicial 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 450 Page: 17 and quasi-judicial proceedings. This conveys the solemnity and significance of the adjudicative process in determining the truth and contributes to the transparency and accountability of proceedings. The application of the open court principle to pleadings [50] The open court principle applies not only to judicial proceedings, but to the publication of pleadings which were filed in those proceedings. In Singer, the Federal Court of Appeal reconfirmed the application of the principle in relation to court pleadings and evidence. Here, the Federal Court of Appeal addressed a confidentiality order that had an unnecessary and overreaching effect on the proceedings. The appellant argued that her social insurance number, which had been reproduced in affidavit material, was not relevant to the issues raised in the proceedings. The Federal Court directed that the affidavit materials of the respondent be sealed. The Federal Court of Appeal overturned this order because it was broader than necessary. It observed that the open court principle is a basic tenet of the legal system and that it applies to hearings, decisions, court pleadings and evidence (at paragraph 6). It found that, in this instance, alternative measures were available to achieve the same result. [51] These principles, most recently enunciated in Singer, are important in the present motion. In this proceeding, the Application, the statement of particulars, and supporting documentation can be considered the foundational material before this Tribunal. As such, they can be considered in the same light as pleadings. They are therefore, potentially subject to the open court principle. 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 451 Page: 18 The open court principle and the media [52] The essential role that is played by the media, as the agent of the public in adjudicative proceedings, underlies the open court principle. The media is the agent of the public who cannot attend the proceedings (Mentuck at paragraph 52, and see Named Person at paragraphs 81-85, where Justice Lebel dissents in part but conveys undisputed aspects of the open court principle). The freedom of the press to report on judicial proceedings is a core value. The constitutional nature of the open court principle is also critical to keep in mind. Jurisprudence has confirmed that the open court principle is protected by freedom of expression under subsection 2(b) the Charter. The Charter and the Dagenais/Mentuck test [53] The underpinnings of the open court principle stayed intact after the passage of the Charter, grounded in subsection 2(b) and the right to freedom of expression. In most instances, the decision-maker’s determination as to whether the open court principle should be limited is a matter of discretion. There are only a few exceptions to this. For example, an informer’s privilege is absolutely protected, and is not subject to the application of a discretionary test by the courts (Named Person). There may be legislated exceptions as well. Most often however, any limitation upon openness is subject to the court’s discretion and is not to be applied lightly. [54] This general approach, where the decision-maker must apply discretion, also applies to the present motion. In cases that have come after the Charter, the test used to come to that determination is often referred to as the Dagenais/Mentuck test. It is an amalgamation of two 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 452 Page: 19 Supreme Court of Canada decisions as to how a decision-maker should exercise his or her discretion to limit the scope of the open court. Dagenais, issued by the Court in 1994, addressed a publication ban requested by four accused persons who had asked for an order to prohibit the broadcast of a television programme dealing with physical and sexual abuse of young boys. The Supreme Court of Canada discussed the principles of freedom of expression and the right to a fair trial under the Charter. [55] The Court confirmed that it is the individual claiming the restriction on the open court principle who has the burden of justifying the limitation on freedom of expression. It also developed a test for determining whether there was justification for doing so, which reflected the Charter and the substance of the “Oakes test” (from R v Oakes, [1986] 1 SCR 103 (Oakes)). [56] In 2001, the Supreme Court rendered its decision in Mentuck. Here, the Court offered added flexibility to the test articulated in Dagenais. In this case, the accused was charged with second-degree murder. The Crown moved for a publication ban to protect the identity of officers and to protect some investigatory methods that had been used. The Court affirmed the test articulated in Dagenais, but changed some of its wording to ensure that it went beyond situations relating to the right of an accused so that it also applied to other situations concerning a fair trial. [57] MacIntyre, Dagenais and Mentuck address limitations on the open court principle in the context of criminal proceedings. The Supreme Court of Canada has also endorsed this principle in the context of civil proceedings. In Sierra Club, the Court reversed the decision of the Federal 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 453 Page: 20 Court and the Federal Court of Appeal, which denied a confidentiality order in relation to summaries of commercial documents. [58] Given that the present motion is being considered in the civil context, and not the criminal context, the Dagenais/Mentuck test, as it was adapted in Sierra Club is spelled out below (Sierra Club at paragraph 53). A confidentiality order should be granted when: (a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and (b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings. The application of the open court principle to this Tribunal [59] It is clear from the above discussion that the open court principle is broad in scope. In addition, the principle has long standing significance, rooted in the gravity of judicial proceedings. This Tribunal finds that the purpose of this principle may apply equally in the administrative tribunal context, where the tribunal is engaged in quasi-judicial functions. The fact that the open court principle is recognized under the Charter only strengthens its application to the quasi-judicial functions of administrative tribunals. Needless to say, these constitutional values transcend both judicial and quasi-judicial proceedings. [60] To determine whether or not the open court principle applies to an administrative agency, it is important to adopt a functional approach. A functional approach takes into consideration 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 454 Page: 21 factors such as the following: the nature of the work of the tribunal, the mandate of the tribunal and the values underlining it, its adherence to the duty of fairness, whether the agency in question must weigh evidence to come to a determination, the degree to which the tribunal is otherwise engaged in quasi-judicial functions, whether or not the proceeding is adversarial in nature, and to what degree the rights and obligations of parties are at stake. Any wording of its statute that would limit that principle must also be considered, keeping in mind that the open court principle is constitutionally protected. [61] With these factors considered, it is clear that this Tribunal must apply the open court principle. It must weigh evidence. It performs a quasi-judicial function much like that of a court of law. It adheres to the duty of fairness, and its enabling statute requires it to conduct its proceedings in accordance with the principles of natural justice (See subsection 21(1) of the Act). The Tribunal is adjudicative in nature and is an impartial decision-maker. It hears the contradictory positions of the parties and witnesses, makes findings of fact and assesses credibility. The fact that its decision-makers are federally appointed judges is not determinative, but it is significant in the context of the Act and its values. The Act creates this Tribunal as a new and specialized body. The Tribunal makes decisions that affect the rights and duties of the parties before it (See also El-Helou v Courts Administration Service, 2011-PT-01 at paragraphs 85-89). There is no requirement to hold a proceeding in camera. Conversely, the inclusion of a provision in the Act, that allows the Tribunal to determine that proceedings may be held in camera, makes it clear that the proceedings are presumptively open to the public (See section 21.3 of the Act.) 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 455 Page: 22 [62] A framework of procedural rules is in place to ensure fairness, transparency and objectivity in the decision-making process. Subsection 21(2) of the Act permits the Chairperson of the Tribunal to make rules of procedure governing practice and procedure. These include, but are not limited to, the summoning of witnesses, the production and service of documents, and discovery proceedings. The Tribunal Rules also allow a party to make a motion for a confidentiality order, as an exception to the presumptively open proceedings held by the Tribunal. [63] The Tribunal also finds that the wording of the Act does not restrict the application of the open court principle to its proceedings. It does not support the argument advanced by the moving parties that suggests that subsection 22(e) and section 44 of the Act endorse confidentiality as a key component of the Act. Subsection 22(e) pertains to specific considerations relating to the investigation of the complaint only. Furthermore, the wording of that provision is qualified by “any other Act of Parliament” and “in accordance with the law”. It states that the duties of the Commissioner include: subject to any other Act of Parliament, protect, to the extent possible in accordance with the law, the identity of persons involved in the disclosure process, including that of persons making disclosures, witnesses and persons alleged to be responsible for wrongdoing; sous réserve de toute autre loi fédérale applicable, veiller, dans toute la mesure du possible et en conformité avec les règles de droit en vigueur, à ce que l’identité des personnes mises en cause par une divulgation ou une enquête soit protégée, notamment celle du divulgateur, des témoins et de l’auteur présumé de l’acte répréhensible; (Emphasis added) 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 456 Page: 23 [64] Section 44 of the Act is also qualified in its wording. It requires that the Commissioner and every person acting on behalf of or under the direction of the Commissioner not disclose any information that comes to their knowledge in the performance of their duties under the Act. However, this requirement does not apply where disclosure is required by law or permitted by the Act: Unless the disclosure is required by law or permitted by this Act, the Commissioner and every person acting on behalf of or under the direction of the Commissioner shall not disclose any information that comes to their knowledge in the performance of their duties under this Act. Sauf si la communication est faite en exécution d’une obligation légale ou est autorisée par la présente loi, le commissaire et les personnes agissant en son nom ou sous son autorité sont tenus au secret en ce qui concerne les renseignements dont ils prennent connaissance dans l’exercice des attributions que leur confère la présente loi. (Emphasis added) [65] But beyond these observations, the Tribunal notes that it must interpret the Act in light of its entire context, in the grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the legislation and the intention of Parliament (Ruth Sullivan, Sullivan on the Construction of Statutes, 5th ed. (Markham: LexisNexis, 2008) at 1, 257-259, 264-269). The preamble highlights the importance of the federal public administration as part of the essential framework of Canadian parliamentary democracy. It also highlights the balance between the duty of loyalty owed by public servants in the course of their employment and the right to 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 457 Page: 24 freedom of expression guaranteed by the Charter. The purpose of the Act is to ensure effective procedures for the disclosure of wrongdoing and transparent processes for doing so. [66] It could be said that the Act is designed in such a way that the public is meant to be the permanent observer or standing jury of the proceedings of the Tribunal. The Privacy Act exceptions and the open court principle [67] The moving parties argue that, due to the application of the Privacy Act, the confidentiality order should be granted. That legislation provides that personal information under the control of government institutions shall not be disclosed by that institution without the consent of the individual to whom the personal information relates. [68] The Tribunal finds that the Privacy Act cannot operate to support the continuation of a confidentiality order. Exceptions under the Privacy Act apply in the present situation. Subparagraph 8(2)(a) allows the disclosure of personal information without consent where it is compiled or obtained by an institution for a purpose consistent with its use. The Tribunal is of the view that this information was obtained by the Commissioner pursuant to his mandate to investigate complaints under the Act. The information was referred to the Tribunal, pursuant to the Act. Therefore, this constitutes a disclosure for the purpose for which the information was obtained and, is most certainly a use consistent with that purpose. [69] Subparagraph 8(2)(b) states that personal information may be disclosed “for any purpose in accordance with any Act of Parliament or any regulation made thereunder that authorizes its 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 458 Page: 25 disclosure.” The Tribunal notes that Rule 5(c) of the Tribunal Rules expressly provides that an Application made by the Commissioner under subsection 20.4(1) of the Act must contain a copy of the complaint and a summary of its content. This forms the basis upon which the Tribunal determines whether or not reprisal has been taken against the complainant due to the disclosure of wrongdoing within the meaning of the Act. [70] The breadth and scope of the Act requires the Tribunal to conduct a proceeding that is transparent in nature. Similar to other quasi-judicial tribunals, this Tribunal receives personal information in the context of a tribunal proceeding. That information may include the Application, the statement of particulars, supporting documentary evidence, and testimony provided to it. That information fulfills a fundamental purpose: to allow the Tribunal to determine whether or not reprisal has taken place. [71] In addition, the Tribunal is authorized by law to make this determination and it is master of its own proceedings. Therefore, the information that the Tribunal receives falls under subparagraph 8(2)(a); and subparagraph 8(2)(b) of the Privacy Act, which relate to a use consistent with that purpose (subparagraph 8(2)(a)); and a use of personal information for a purpose in accordance with any Act of Parliament (subparagraph 8(2)(b)). [72] In addition, subparagraph 8(2)(m) allows the disclosure of material where the public interest in disclosure outweighs an invasion of privacy that could result from it. Disclosure is also permissible under this exception if it would clearly benefit the individual to whom it relates. With regard to this specific exception, the Tribunal cannot support the moving parties’ argument 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 459 Page: 26 that the public interest in disclosure does not, in the present case, outweigh any invasion of privacy that could result from the disclosure. Furthermore, the Act promotes the public interest through presumptively open proceedings before the Tribunal, amongst many other avenues and there is insufficient evidence to come to any other determination, but that the public interest in transparency should prevail. [73] The moving parties take the position that the personal information in question is not relevant and would be of limited value in open court. They submit that many of the issues raised in the complaint were found not to be appropriately before the Commission; and that certain allegations were not substantiated by the Commission for the purposes of referral to this Tribunal. On this basis, they submit that there is no basis upon which to apply the exceptions under the Privacy Act. [74] The Tribunal does not agree with this argument. In this regard, the complainant’s response to this point is also compelling. Individuals who are the subject of allegations are routinely referred to by name in many proceedings, even when the allegations are later dismissed. [75] The moving parties’ argument is also premature. Although it is not within the Tribunal’s jurisdiction to address questions as to whether or not reprisal was taken in the context of certain components of the complaint, this does not mean that the Tribunal cannot address this information in relation to evidence. Evidence pertaining to the allegations that the Commissioner dismissed may be relevant to the proceedings related to the allegation that actually warranted the 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 460 Page: 27 Application before this Tribunal. In addition, the facts relating to the allegations that were dismissed might be relevant. The evidence related to the initial complaint and all of its allegations may be considered at the hearing (See also El Helou v Courts Administration Service, 2011-PT-01 at paragraph 97). [76] The Tribunal does not dispute the important purpose of the Privacy Act. However, its purpose must be balanced with other values. This balancing is even more compelling because the open court principle is constitutionally protected. It should also be noted that tribunals, such as this tribunal, do not actively seek out and “obtain” information. Tribunals receive information from the parties in the context of a dispute that will be adjudicated. This is quite distinct from other parts of the executive who “obtain” and actively gather information for other purposes. [77] As the complainant noted in his response to this motion, the Privacy Act does not “compel the Tribunal to abandon its own statutory purpose”. This Tribunal agrees. Nor can the Privacy Act override the constitutional principles that are interwoven into the open court principle. Due to the open court principle, personal information that this Tribunal manages, and which is received as part of its quasi-judicial functions, is publicly available. Subsection 69(2) of the Privacy Act provides an important exception to its application in this regard. Information that is available to the public is not subject to sections 7 and 8 of the Privacy Act. Those provisions prohibit the use or disclosure of personal information (except in limited circumstances). Under subsection 69(2), sections 7 and 8 do not apply to personal information that is publicly available. Therefore, if this constitutionally protected principle applies to an administrative tribunal-and 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 461 Page: 28 this is the case here – personal information that is properly before it in its quasi-judicial functions is not subject to the Privacy Act. Summary [78] The open court principle is a cornerstone of the Canadian legal system. It applies not only to the hearing itself, but may also apply to all of the proceedings prior to the hearing. It applies to pleadings, and in this proceeding, to the Application, the statement of particulars and supporting documents that are filed in accordance with this Act and the Tribunal Rules. [79] This principle can be limited in a few ways. For example, informer’s privilege is unqualified and does not allow the court to exercise its discretion. It may also be limited by statute. Generally however, the court may exercise its discretion to limit the open court principle by applying its discretion according to the test in Dagenais/Mentuck. Therefore, the decision- maker would exercise his or her discretion, in its consideration of a variety of protective orders that limit access to information in the context of a proceeding. The open court principle applies to this Tribunal and it will exercise its discretion to determine whether or not the principle should be limited. [80] The Privacy Act cannot have the effect of limiting the scope of the open court principle in these proceedings. Exceptions under the Privacy Act apply: the exception pertaining to consistent use (subparagraph 8(2)(a)); the exception pertaining to a purpose in accordance with an Act of Parliament or regulation made thereunder (subparagraph 8(2)(b)); and the exception pertaining to public interest (subparagraph 8(2)(m)). Due to the Charter protected open court principle and its 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 462 Page: 29 application to the Tribunal, personal information that is obtained in the context of this Tribunal’s quasi-judicial functions is otherwise available to the public. Therefore, the broad exception under subsection 69(2) of the Privacy Act applies as well. IV. APPLICATION TO THE REQUEST FOR THE CONTINUATION OF THE CONFIDENTIALITY ORDER [81] This Tribunal must now determine whether or not Appendices A and B ought to be limited through the application of a confidentiality order. As discussed above, for several reasons, the prohibitions under the Privacy Act do not allow the imposition of a confidentiality order. The open court principle also renders the information before this Tribunal available to the public. The question remains as to whether or not these two Annexes can be excluded or limited by virtue of the application of the test articulated in Dagenais; Mentuck and Sierra Club. [82] This Tribunal adapts these tests from the jurisprudence for the purposes of its proceedings in the following manner. A confidentiality order will be granted when: The order is necessary to prevent a serious risk to an important interest sought to be protected and alternative measures will not prevent this risk; and The salutary (beneficial) effect of the order outweighs it deleterious (harmful) effects on the right to freedom of expression and the public’s interest in open and accessible tribunal proceedings. [83] The moving parties argue that there is a serious risk in disclosing this information because there is the potential for damage to the personal and professional reputations of the interested parties. They also argue that the order in question is narrow and that there are no 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 463 Page: 30 reasonable alternatives. They note for example, that expunging the content at issue would be impractical and would not allow for a readable and redacted version of the document in question. [84] They also note that some of the allegations in the complaint were not the subject of an investigation by the Commissioner and would not properly be the subject of such an investigation. They refer to the fact that not all the allegations form part of the Application to the Tribunal. Finally, they state that if the information in the Annexes was made public, then there is a great likelihood that this would cause damage to their personal and professional reputations. If they are not kept confidential, they will limit future career opportunities. [85] In support of the motion, they submit several supporting affidavits, including an affidavit filed by the OPSIC investigator, dated May 13, 2011. A large number of her observations pertain to the security investigation conducted by the Courts Administration Service, relating to the safety and security of a member of the judiciary of one of its courts of law. [86] As noted earlier in these reasons, there is a publication ban in effect that relates to the member of the judiciary in question and matters pertaining to the investigation. [87] The contents of the other affidavits have a number of similarities. They refer to the fact that some of the allegations in the complaint were not the subject of an investigation by the Commissioner and would not properly be the subject of such an investigation. They also note that not all the allegations were found to constitute reprisal, and therefore, do not form part of the Application to the Tribunal. They state that they believe that if the allegations relating to them 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 464 Page: 31 were made public, there is a great likelihood that they would cause damage to reputations, both personally and professionally; and that if these contents are not kept confidential, this will limit future career opportunities. [88] The Tribunal cannot allow a confidentiality order on the basis of these submissions and evidence. The submissions and the supporting material that were provided are mere assertions, and there is insufficient evidence to satisfy the Tribunal that there is a serious risk to the respondents and to the interested parties in the disclosure of the information in the complaint. The fact that the material contains sensitive, damaging or embarrassing material does not constitute an exception that requires a confidentiality order or sealing order. In addition, these considerations must be weighed with the integrity of the legal process (John Doe 2003; John Doe 2008; and Rivard). [89] As noted earlier in these reasons, the fact that an allegation was found by the Commissioner to not constitute reprisal does not, in and of itself, establish grounds for the limitation of the open court principle. In addition, in this case, the affidavit does not provide a basis in evidence as to the great likelihood that the allegations, if made public, would cause damage to the reputation of the parties. [90] It is also important to note that those documents filed as pleadings do not yet constitute evidence of the contents. Furthermore, the interested parties and the individual respondents are already named, either in the proceedings as a whole, or in the motions. 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 465 Page: 32 [91] The requirement of the first branch of the discretionary test to determine whether or not the open court principle ought to be limited has not been met. Therefore, it is unnecessary for this Tribunal to proceed to the second branch of the test. However, even if it were to do so, there is no evidence before it to demonstrate how an order that would limit the open court principle in this instance would outweigh the harmful effects on freedom of expression and the public’s interest in open and accessible tribunal proceedings. [92] The Tribunal has therefore determined that it will rescind the interim confidentiality order, effective the date of this decision. V. OTHER MATTERS PERTAINING TO THE PUBLICATION BAN [93] The Tribunal reminds the parties that the publication ban, issued by this Tribunal on August 23, 2011, remains in effect. The ban pertains to any information contained in the documents and records before the Tribunal or heard in these proceedings that could identify both the member of the judiciary and the person or persons suspected of making threats or alleged to have made threats against the member of the judiciary named in the confidential notice of motion and in documents filed with the Tribunal. The order remains in effect during the complete proceedings of the Tribunal and after the Tribunal has made a final decision in regard of the complaint, or until such time as the Tribunal orders otherwise. [94] The Tribunal rescinds its interim confidentiality order, dated June 10, 2011, effective the date of this decision. 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 466 Page: 33 THE TRIBUNAL MAKES THE FOLLOWING DECISION: 1. The motions of the two individual respondents and of the three interested parties for the continuation of the interim confidentiality order are denied; 2. The interim confidentiality order, dated June 10, 2011, is rescinded, effective the date of this decision; and 3. The publication ban, dated August 23, 2011, remains in effect. “Luc Martineau” Chairperson 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 467 PUBLIC SERVANTS DISCLOSURE PROTECTION TRIBUNAL PARTIES OF RECORD DECISION NUMBER: 2012-PT-01 TRIBUNAL FILE: T-2011-01 STYLE OF CAUSE: Charbel El-Helou v Courts Administration Service and David Power and Éric Delage BEFORE: The Honourable Mr. Justice Luc Martineau DECISION OF THE TRIBUNAL DATED: February 8, 2012 DECISION RENDERED ON THE BASIS OF THE WRITTEN ARGUMENTS AND RECORDS FILED APPEARANCES: Mr. Brian Radford Senior Counsel For the Office of the Public Sector Integrity Commissioner Mr. David Yazbeck Raven, Cameron, Ballantyne and Yazbeck LLP/s.r.l. For the Complainant Mr. Ronald Caza Heenan Blaikie LLP/s.r.l. For the Employer Mr. Stephen Bird Bird Richard LLP/s.r.l. For the Individual Respondents and the Interested Parties 2 0 1 2 C a n L I I 3 0 7 1 3 ( C A P S D P T ) 468 Case Name: Germain v. Saskatchewan (Automobile Injury Appeal Commission) Between Elaine Germain, Plaintiff, and Automobile Injury Appeal Commission, and Anne Phillips as Chairman and Beverly Cleveland and Joy Dobko, as Members, Defendants [2009] S.J. No. 169 2009 SKQB 106 189 C.R.R. (2d) 1 71 C.C.L.I. (4th) 185 82 M.V.R. (5th) 234 333 Sask.R. 116 2009 CarswellSask 176 176 A.C.W.S. (3d) 306 [2009] 7 W.W.R. 509 Docket: Q.B.G. No. 148/2006 Saskatchewan Court of Queen's Bench Judicial Centre of Regina R.K. Ottenbreit J. March 18, 2009. (111 paras.) Constitutional law -- Canadian Charter of Rights and Freedoms -- Legal rights -- Life, liberty and security of person -- Right not to be depicted thereof -- Principles of fundamental justice -- Page 1 469 Protection against unreasonable search and seizure -- Application by plaintiff for injunctive and declaratory relief to prevent publication by Automobile Injury Appeal Commission of applicant's appeal before Commission dismissed -- Applicant embarrassed that her medical, income and personal information would be disclosed -- Commission's new Web Posting Policy included provisions for removal of names and other unnecessary personal information -- Charter did not prevent Commission from publishing its decision -- Commissions did not seize material from applicant and s. 8 thus not violated -- Stress associated with publication of decision bore no resemblance in degree or kind of proceedings in which s. 7 rights were held to be violated -- Canadian Charter of Rights and Freedoms, ss. 7,8. Government law -- Access to information and privacy -- Protection of privacy -- Personal information -- Disclosure or release of information -- Purpose of disclosure or release -- Application by plaintiff for injunctive and declaratory relief to prevent publication by Automobile Injury Appeal Commission of applicant's appeal before Commission dismissed -- Applicant embarrassed that her medical, income and personal information would be disclosed -- Commission's new Web Posting Policy included provisions for removal of names and other unnecessary personal information -- Legislation or regulations did not prevent Commission from publishing decision -- Commission's new Net Policy properly balanced applicant's concerns regarding identity theft with the open courts principle. Application by the plaintiff for injunctive and declaratory relief to prevent the publication by the Automobile Injury Appeal Commission of the results of her appeal before the Commission. The applicant was injured in a motor vehicle accident. She claimed she was wrongfully denied accident benefits and appealed to the Commissioned. She did not want the decision in her case published on the Commission's website since she was embarrassed that her medical, income and personal information would be disclosed. The Commission's new Web Posting Policy included provisions that names would be removed from the decision if necessary and initials substituted. Commission staff would also review decisions and delete potentially identifying information that was not necessary. The applicant argued that the Commission was subject to the provisions of the Health Information Protection Act and that the Commission was not exempted from the Freedom of Information and Protection of Privacy Act. She also claimed her rights under ss. 7 and 8 of the Charter were violated. The Commission argued that the provincial legislation did not preclude it from publishing its decisions. The Commission admitted that it was a government institution subject to the Freedom of Information and Protection of Privacy Act. It argued that while the Commission was also a government institution for the purposes of the Health Information Protection Act, that legislation did not apply in the same way. It argued that the Freedom of Information and Protection of Privacy Act did not apply to material that was a matter of public record and that the Commission hearings which were conducted in public would fall within these parameters. HELD: Application dismissed. The Commission had authority to publish its decisions, including on the web, despite the absence of statutory or regulatory provisions specifically allowing it to do so. S Page 2 470 .196.1(9) of the Automobile Accident Insurance Act gave to the Commission any other powers that it considered necessary or incidental to carry out the intent of that part of the Act. The publication of the decisions was incidental and necessary to the proper functioning of this tribunal. The Commission was part of the administration of justice and the open courts principle mandated openness and accessibility to the decisions of the Commission. Based on the exemption outlined in s. 4(4), the Health Information Protection Act, did not preclude the Commission from disclosing the health information and therefore publishing its decisions containing health information on the Internet without the consent of the appellant. The Commission's decisions were a matter of public record under the Freedom of Information and Protection of Privacy Act, and did not require appellant's consent of to use her personal information in its decisions or restrict the publishing of the Commission's decision online. The Commission was not a state agent engaged in a search or seizure. The Commission had not ordered the applicant to produce any documents, nor did it have the power to do so. S. 8 of the Charter was not breached. The Commission's practice of publishing its decisions and the stress associated with this bore no resemblance in degree or kind of proceedings in which s. 7 rights were held to be violated. The lack of notice in this case regarding publishing decisions did not violate the principles of fundamental justice of procedural fairness. There was no violation of any principles of fundamental justice in this case. The Commission's new Net Policy properly balanced the applicant's concerns regarding identity theft with the open courts principle. Statutes, Regulations and Rules Cited: Automobile Accident Insurance Act, R.S.S. 1978, c. A-35, s. 158(1), s. 168, s. 193(8), s. 196.1, s. 196.1(9), s. 196.3(4), s. 196.4 Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985, App. II, No. 44, Schedule B, s. 7, s. 8, s. 12 Freedom of Information and Protection of Privacy Act, S.S. 1990-91, c. F-22.01, s. 3(1), s. 17(2)(b), s. 24, s. 29(2)(a), s. 29(2)(t) Health Information Protection Act, S.S. 1999, c. H-0.021, s. 2(h), s. 2(m), s. 2(4), s. 3(1), s. 4(4) Personal Injury Benefits Regulations, c. A-35, Reg. 3, s. 92, s. 95(1), s. 95(2)(d) Counsel: Elaine Germain appearing on her own behalf assisted by. Gordon J. K. Neill, Q.C. Charita N. Ohashi and Richard James Fyfe for the defendants. Page 3 471 JUDGMENT R.K. OTTENBREIT J.:-- INTRODUCTION 1 Elaine Germain ("Germain") applies for injunctive and declaratory relief to prevent the publication on the Internet or otherwise by the Automobile Injury Appeal Commission ("the "Commission") of the results of an appeal she has commenced before the Commission. 2 The Commission panel assigned to hear her appeal consisted of Anne Phillips, Beverly Cleveland and Joy Dobko. THE FACTS 3 The Commission is a quasi-judicial tribunal created to hear appeals from the decision of Saskatchewan Government Insurance ("SGI") adjusters with respect to automobile injuries. It is created pursuant to s. 196.1 of The Automobile Accident Insurance Act, R.S.S. 1978, c. A-35 (the "AAIA"). The Commission hears and determines appeals of adjuster decisions made under Part VIII of the AAIA regarding no fault bodily injury benefits. A claimant under the AAIA has the option of appealing such an adjuster decision by SGI to either the Court of Queen's Bench or to the Commission. The Commission may make rules governing its proceedings as provided at s. 196.4 of the AAIA subject to the Personal Injury Benefits Regulations, c.A-35, Reg. 3, as am. ("the Regulations"). The Regulations state in s. 92 that all hearings of the Commission are to be open to the public unless otherwise ordered by the Commission. As well s. 193(8) of the AAIA states all decisions of the Commission are to be in writing and provided to the claimant and SGI. The Commission is a prescribed (government institution) for the purpose of The Freedom of Information and Protection of Privacy Act, S.S. 1990-91, c. F-22.01 ("FOIPP"). As such it is the subject of the legislation in relation of the collection, use and disclosure of personal information. 4 Germain was injured in a motor vehicle accident in 2001 and claimed that she was wrongfully denied benefits under the AAIA. Germain commenced her initial appeal before the Commission by application dated March 31, 2004. She filed additional applications on October 27th and November 8th of 2004 and on July 14th of 2005. The issues raised in all of these were consolidated with the original appeal. On August 12, 2004 the plaintiff wrote to the Commission advising that she had read decisions published on the Commission website and that she did not want the decision in her case published. The Commission publishes and broadcasts decisions on the Internet on their own website and on CanLii. On August 17, 2004 the plaintiff appeared before the Commission panel and asked that the Commission not publish any decision on its website about her or in the alternative, that her name, age, occupation and other identifying details be removed from the decision. She was Page 4 472 embarrassed that her medical, income and personal information would be disclosed. The appeal hearing was adjourned at Germain's request for the Commission's determination on this point. After consideration of the issue of publication and whether there was authority for it, the plaintiff was informed on December 22, 2004 that the Commission would continue to publish its full decisions on its website. The plaintiff's appeal before the Commission was continued on June 29, 2005 and November 1, 2005. The matter was adjourned to February 7, 2006 for closing arguments. 5 The statement of claim in this matter was issued on January 27, 2006. The Commission's hearing was subsequently adjourned from time to time thereafter to allow for this application. A trial date of September 18, 2007 was selected by the parties. However on June 1, 2007 The Honourable Mr. Justice T. C. Zarzeczny granted an interim order staying the Commission's proceedings respecting the plaintiff's appeal including the final hearing. This stay order was directed to continue until the matter was to be heard on September 18, 2007 by way of trial and a judgment rendered. 6 The trial of this matter was heard before Madam Justice Lynn MacDonald on the 18th day of September 2007 who reserved her decision. As a result of her illness no decision was rendered by Justice MacDonald and it was determined that a re-hearing would take place. It was agreed that on the re-hearing the matter would proceed by way of transcript and exhibits from the first trial as well as any arguments the parties wished to make. Ms. Germain was cross-examined at the first trial and testified that she did not ask for the hearings to be closed in accordance with the Regulations. She indicated that the hearing room was small and there was no room for the public in any event. 7 Prior to the re-hearing of this matter before me the Commission applied to adduce new evidence through the affidavit of Barbara Tomkins ("Tomkins") that it was now publishing its decisions with editing of certain details and it had formulated and adopted a new policy with respect to publication and editing of its decisions on the Internet. Tomkins affidavit attached the Web Posting Policy -- Written Decisions effective June 1, 2008. After the hearing and over the objections of Germain, I allowed the evidence to be tendered on the re-hearing including the new Web Posting Policy. 8 No notice is given of the publication or broadcast of the Commission's decisions on the website to the appellants until after the appeal is commenced. Once an appeal is commenced at the Commission it cannot be transferred to the Court of Queen's Bench which also has jurisdiction to hear the appeal. 9 The new Web Posting Policy of the Commission indicates that it attempts to strike a balance between the open courts' principle and the protection of privacy of parties in their proceedings. 10 The new policy includes provisions that names will be removed from the title page if necessary and throughout the decision and initials substituted. Commission staff will also review decisions and delete potentially identifying information that is not necessary, but such changes require the approval of the Chair or Manager of Operations. Decisions published on the Internet Page 5 473 prior to the implementation of the policy will be revised in accordance with the policy and the revised version substituted for the current decision. If possible and necessary, computer software which prevents a general search from linking names to cases on the website will be utilized. Germain was advised of this new policy on June 2, 2008. POSITION OF THE PARTIES 11 Germain argues that the Commission is subject to the provisions of The Health Information Protection Act, S.S. 1999, c.H-0.021 as am. ("HIPA"). She argues that although s. 4(4) of HIPA provides that it does "not apply to personal health information obtained for the purposes of Part VIII of the AAIA that does not give the Commission the right to publish its decisions which contain health information on a website because it is not one of the purposes set out in Part VIII of the AAIA. 12 She argues that it is necessary to look at the purposes for which health information is obtained pursuant to Part VIII of the AAIA. She points out that the requirement that an insured must undergo on examination by a practitioner chosen by the insurer under s. 158(1) is a purpose which does not attract HIPA. She also points out s. 168 which provides that SGI can obtain from any hospital or practitioner the medical information on the person treated for injuries sustained in an accident. She argues that these are the purposes that "relate to health information obtained for the purposes of Part VIII of the AAIA". She argues that the exemption in s.4(4) is limited to such objects and purposes of Part VIII and is not a blanket exemption for every provision of Part VIII and to construe this section too broadly as the Commission suggests is against the intention of the legislation. 13 She argues that because HIPA is paramount legislation, the AAIA must be read restrictively and subject to it. She argues that the Commission is subject to Part II of HIPA which requires that consent should be given before health information is published or broadcast on the Internet. She also argues that the health information once it is given to SGI makes SGI trustees of the health information and therefore it must be kept confidential. 14 Germain argues that the AAIA does not support the Commission's position. For example, s. 196.3(4) does not give the Commission the power to publish and broadcast for example decisions which identify the appellant's disclosure or health or income information. Nor does s. 196.4 she argues give the Commission the right to publish its decisions. Although that section gives the Commission the power to make rules governing its proceedings, this is different than broadcasting decisions on the web. Section 92 of the Regulations states that hearings are to be open to the public unless the Commission otherwise orders. She argues that keeping an open door for the public is grossly different from publicizing or broadcasting the evidence that was led on the hearing over the Internet. Lastly, she argues that s. 193(8) which provides that the Commission's decisions are to be in writing and given to the claimant and SGI does not allow them to be given to the general public by the website. She argues that the words "given to the claimant and SGI" suggest and imply that they not be given to the general public. She argues by analogy that The Workers' Compensation Page 6 474 Board conducts hearings and appeals that always involve injuries and casualties and health information and income and personal information but they keep those records private. Additionally she argues that the courts because of privacy legislation have started protecting files from the public using initials. She argues that the Commission is not exempted from FOIPP. FOIPP and its Regulations do not generally exempt Part VIII of the AAIA from its operation. She argues that the fact that FOIPP does not exempt Part VIII gives support to the argument that the HIPA exemption applies only to the passing on of medical information for the purposes of Part VIII and it is not a blanket exception. 15 Germain also argues that FOIPP further protects her privacy. Although s. 3(1) of FOIPP states that it does not apply to material that is a matter of public record, the decision of the Commission is not stated to be and is not a public record since s. 193(8) of the AAIA restricts the Commission to providing written reasons for its decisions to the parties only and not the public. Although s. 95(1) and (2) of the Regulations directs the Commission to keep a record of its proceedings including the decision, that direction does not make it a public record. She argues that a public record is not the same as an "official record". She argues a public record is something that is legislated to be public or -- commonly public such as land titles records, assessment rolls, personal property registry documents. She argues that public records do not contain sensitive information. For example a social assistance recipient list is an official record but not a public record. She argues that official records could be public or private. Moreover, "public record" is not defined in the FOIPP and should be interpreted very restrictively as this is an exemption from legislation granting the public a right to privacy. She argues that the phrase "public record" which is defined in Alberta legislation applies only in Alberta and in any event only to certain government tribunal records and not all records. She also argues that the requirement that the Commission's hearings be open do not give the Commission a right or power to publish decisions. 16 She argues that if all the information filed at the Commission office could be inspected by the public that would be ludicrous and everyone could see personal information. She argues that although s. 17(2)(b) of FOIPP provides that the section does not apply to a record that is an official record that contains a statement of reasons for a decision that is made in the exercise of discretionary power or adjudicative function, that subsection does not authorize or permit the Commission to publish and broadcast its decisions. She argues that that section may only be related to and apply to the information listed in s. 17(1) none of which is of the type in the Commission decision and thus does not apply to the Commission or give it any right to publish its decisions. 17 She argues that in any event s. 17 deals only with the permissive and discretionary provisions when a government releases information. It is different than Part IV of the FOIPP and mandatory provisions protecting privacy. She argues that these provisions have to be ignored entirely to find that the Commission has the right to publish its decisions pursuant to s. 17(2)(b) of FOIPP. 18 She also points to s. 24 as helping her. She indicates that as a person would reasonably expect that health and income information given to the Commission for the purposes of appeal would be Page 7 475 kept private. It is caught by s. 24 of FOIPP. Germain argues that the publishing of decisions does not serve the public better by providing information or assistance since each appeal is fact sensitive and different. She also argues that an appellant is not advised that a decision containing health and personal information will be published on the Internet for all to see and that the notice that the decision be published on the website is only provided after the appeal has been brought. 19 With respect to 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 (the "Charter") relief Germain argues that the Commission's practice in publishing its decisions is contrary to s. 7 and 8 of the Charter and seeks an injunction or order of prohibition against the Commission under s. 24. 20 She argues that the Commission's practice of publishing decisions is a breach of her privacy rights; that the Supreme Court has held that the right to privacy is contingent on a reasonable expectation of privacy and that the court has recognized a number of kinds of privacy including information privacy. She argues that in the case of R. v. Dyment [1988] 2 S.C.R. 417 the court said that the notion of privacy derives from the assumption that all information about a person is in a fundamental way his own for him to communicate or retain for himself as he sees fit. She also cited Canadian AIDS Society v. Ontario (1995), 25 O.R. (3d) 388 (General Div.) (affirmed 1996 31 O.R. (3d) 798 C.A. leave to appeal refused 1997, [1997] S.C.C.A. 33). Germain argues that the publicizing by the Commission of private information in order to help others does not come close to the importance of her right of privacy. 21 The Commission argues that the provincial legislation does not preclude it from publishing its decisions. The Commission admits that it is a government institution for the purposes of FOIPP and is subject to it. It argues that while the Commission is also a government institution for the purposes of HIPA that legislation does not apply in the same way. 22 The Commission argues that s. 4(4) of HIPA exempts personal health information obtained for the purposes of Part VIII of the AAIA from HIPA's collection, use and disclosure provisions. Therefore HIPA does not apply to the collection, use and disclosure of personal health information obtained by the Commission for the purposes of its hearings and it is not prevented under that Act from publishing its decision. 23 It argues that FOIPP does not apply to material that is a matter of public record as per s. 3(1)(b). While the term "matter of public record" is not specifically defined in FOIPP it argues that it is not unreasonable to conclude that the hearings which are conducted in public would fall within these parameters. It argues further that because the legislature had specifically directed that hearings be held in public that these hearings are a matter of public record and since the full evidentiary process of the Commission hearings are open to the public it is illogical to suggest that decisions arising from these hearings should not be made available to the public. It cites in support of its argument the case of General Motors Acceptance Corporation of Canada v. Perozni (1965),51 D.L.R. (2nd) 724 (Alta. D.C.) at paragraph 59 in relation to the definition of public records in The Page 8 476 Interpretation Act, R.S.A. 2000, c.I-8 as an analog. 24 It argues that s. 17(2)(b) of FOIPP specifically provides that the exemption from disclosure does not apply to an official record that contains a statement of the reasons for decision made in the function of an adjudicative decision. As well it argues that s.4(b) of FOIPP provides that the Act does not in any way limit access to records normally available to the public and presumably this includes decisions by tribunals whose proceedings are open to the public. They argue by analogy that other tribunals who conduct public hearings such as the Labour Relations Boards and the Saskatchewan Municipal Board make their decisions public. 25 The Commission also argues that s. 29(2)(a) of FOIPP permits disclosure of personal information for the purpose for which the information was compiled or used consistent with that purpose. In the case of Commission hearings, this information is compiled in a public setting for the purpose of adjudicating statutory entitlements and therefore publication of the decision disclosing information is consistent with the public forum through which the information was obtained since it may be of precedential value to others in similar circumstances. 26 Moreover s. 29(2)(t) of FOIPP permits disclosure for any purpose in accordance with an Act or Regulation or authorizes disclosure. They argue that in this case s. 92 of the Regulations explicitly states that Commission hearings are to be conducted in public and the written decision is the last piece of this hearing process. It argues that the principle of transparency in a judicial process is well recognized by law. While the Commission is a tribunal and not a court it has a process similar to a court in that it is a decision making body that is tasked with deciding legal rights and obligations of the parties that appear before it. The Commission cites the case of The Attorney General of Nova Scotia and Ernest Harold Grainger. v. Linden MacIntyre v. The Attorney General of Canada, et al. [1982] 1 S.C.R. 175 which established that while the publication of proceedings may be to the disadvantage of a particular individual concerned, it is of vast importance to the public that the proceedings of courts of justice be universally known. The Commission also cites the Sierra Club of Canada v. Canada (Minister of Finance) 2002 SCC 41; [2002] 2 S.C.R. 522 at paragraph 52 and Archer v. Orange Benevolent Society 2001 SKQB 557 (Sask. Q.B.), Potash Corp. of Saskatchewan v. Barton 2002 SKQB 301 (Sask. Q.B.) and John Deere Ltd. v. Long Tractor Inc. 2003 SKQB 24 (Sask. Q.B.). 27 The Commission argues that if the plaintiff's appeal was before the court rather than the Commission and she sought to curtail the public's access, the onus of proof in demonstrating the public accessibility should be limited would be on her. The Commission argues that her evidence in this matter does not establish either societal values of super inordinate importance or any other exceptional circumstances in issue and that Germain would not meet the test for satisfying a court that it should limit public accessibility. It is therefore difficult to see why there would be a greater expectation of privacy in proceedings before a tribunal. 28 The Commission also argued that although the Regulations state clearly that hearings are open Page 9 477 to the public unless otherwise ordered Germain did not seek to have the Commission exercise its discretion in limiting public access to the hearing process itself. 29 With respect to Charter rights it argues that posting decisions on the Internet does not violate Germain's rights under s. 7, 8 or 12 of the Charter. It argues s. 8 and 12 are not applicable. 30 It argues the case of R. v. Dyment, supra defined the seizure as the taking of something without that person's consent; that s. 8 is intended to protect against unreasonable and warrantless gathering of evidence by the state to investigate suspected criminal or regulatory offences. It argues that the Commission is not a state agent engaged in a search or seizure, but rather a civil adjudicative tribunal before which parties voluntarily provide materials to further their claims. The Commission does not order the plaintiff to produce any documents nor does it have the power to do so. Section 86(5) of the Regulations mandates that certain documentation will be required if a claimant chooses to pursue an appeal. This is to assist the Commission in assessing an appeal's merits, not to gather evidence with a view to laying criminal or regulatory charges. In short s. 8 is not violated because the Commission has not conducted a search or seizure and s. 8 does not logically apply to the matter as the plaintiff's concern is how the Commission will use the information, not how it was obtained. 31 Although not specified in her statement of claim paragraphs 2 and 4(e) of the notice pursuant to The Constitutional Questions Act, R.S.S., c.C-29 as am. Germain alleges that Commission's practice of posting its decision on the Internet amounts to cruel and unusual treatment. Germain has clarified that she was relying on s. 12 of the Charter. The Commission argues that Germain is not subject to punishment in the present matter -- terms engaged only where the state has imposed penal consequences. The Commission observes that in Rodriguez v. British Columbia (Attorney General) [1993] 3 S.C.R. 519 at 609 the Supreme Court indicated in obiter that the word "treatment" may apply outside the penal context in examples which involved direct physical intervention by state agents on individuals. The Commission argues that dissemination of the information is not treatment or punishment as it is defined by the courts. The Commission also argued that it is not an agent of the state and therefore does not approach the level of state control mentioned in Rodriguez, supra. Publishing its decisions is only exercising control over its process, i.e. public access to its own written decisions. It argues that at the most the Commission is exercising direct control of information, not control of individual's themselves. 32 The Commission agrees that s. 7 of the Charter may have application in the present matter in the sense that Germain is alleging a violation of security of the person. The security of the person can be violated by the state causing serious interference with psychological integrity as defined in New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46 at paragraph 66. The Supreme Court however said that not all state interference with an individual's psychological integrity will engage s. 7 and the stress must be serious and profound and the individual interest affected must be of fundamental importance. The Commission argues that the practice of publishing its decisions bears no resemblance to the kind of proceedings in which the Page 10 478 state interferes profoundly i.e. personal choices of an individual. The Commission argues that privacy is not a free standing s. 7 right which can invalidate law or state action and that privacy interest in the past has been used as a shield to defend an impugned law or state of law, not as a sword to attack it. 33 Even assuming the plaintiff could establish that the Commission's actions violate her security of person, Germain must establish that it is not in accordance with one or more of the principles of fundamental justice. The Commission argues that the plaintiff's reply to particulars as to what principles of fundamental justice are engaged, do not disclose any principles of fundamental justice. If proper notice is what the plaintiff is claiming as a principle of fundamental justice, the Supreme Court has held that such notice is not such a principle in R. v. Rodgers, 2006 SCC 15. The Commission argues that in any event social interests and other values are balanced against a claimant's rights on a s. 7 analysis and points to the Supreme Court in the case of R. v. Mentuck, [2001] 3 S.C.R. 442, at paragraph 39 stressing that the presumption that courts should be open and the reporting of their proceedings be uncensored. This principle has been applied to require media access to court exhibits themselves while proceedings are ongoing and this concern in the public's confidence in the proper administration of justice has been found to apply to the workings of adjudicative tribunals in Pacific Press v. Canada Minister of Employment and Immigration (1991), 127 N.R. 325 (F.C.A.). RELEVANT LEGISLATION 34 The relevant legislation is as follows: The Automobile Accident Insurance Act: 158 (1) If requested to do so by the insurer, an insured shall undergo an examination by a practitioner chosen by the insured. ... 168 Within six days after receiving a written request from the insurer, a practitioner who or hospital that is consulted by an insured or who or that treats an insured after the accident shall provide the insurer with a written report respecting: (a) the consultation or the treatment; and (b) any finding or recommendation relating to the consultation or treatment. Page 11 479 ... 193 (8) The appeal commission shall provide the claimant and the insurer with written reasons for its decision. ... 196.1 (1) The Automobile Injury Appeal Commission is established. ... (9) In addition to any powers given to the appeal commission by the Lieutenant Governor in Council, this Act and the regulations, the appeal commission may exercise any other powers that it considers necessary or incidental to carry out the intent of this Part. 196.3 (4) The appeal commission shall keep any records that it considers necessary for the proper conduct of its business. 196.4 (1) Subject to the regulations, the appeal commission may make rules: (a) governing the management and conduct of its business and the conduct of the meetings, hearings, reviews and any other proceedings of the appeal commission; and (b) respecting forms, applications and other documents required to be used and the procedures to be followed in the conduct of its affairs. (2) The appeal commission shall cause its rules respecting hearings that are made pursuant to subsection (1) to be published in the Gazette. (3) If the requirements of this Act, the regulations and the rules of the appeal commission have been substantially complied with, no order or decision of the appeal commission is to be set aside by reason only of a defect, error, omission Page 12 480 or irregularity in any matter associated with a proceeding before the appeal commission. The Personal Injury Benefits Regulations: 92 Unless the appeal commission orders otherwise, a hearing is open to the public. ... 95 (1) The appeal commission shall compile a record of a hearing that was held. (2) The record of a hearing mentioned in subsection (1) is to consist of: ... (d) the written decision of the appeal commission; The Health Information Protection Act: 2 In this Act: (m) "personal health information" means, with respect to an individual, whether living or deceased: (i) information with respect to the physical or mental health of the individual; (ii) information with respect to any health service provided to the individual; (iii) information with respect to the donation by the individual of any body part or any bodily substance of the individual or information derived from the testing or examination of a body part or bodily substance of the individual; (iv) information that is collected: (A) in the course of providing health services to the individual; or (B) incidentally to the provision of health services to the individual; or Page 13 481 (v) registration information; ... 3 (1) This Act binds the Crown. (2) This Act does not apply to: ... (b) personal health information about an individual who has been dead for more than 30 years; or ? [check this - note to me] ... 4 (1) Subject to subsections (3) to (6), where there is a conflict or inconsistency between this Act and any other Act or regulation with respect to personal health information, this Act prevails. ... 4(4) Subject to subsections (5) and (6), Parts II, IV and V of this Act do not apply to personal health information obtained for the purposes of: (a) The Adoption Act or The Adoption Act, 1998; (b) Part VIII of The Automobile Accident Insurance Act; (c) Repealed. 2006, c.C-1.1, s. 26. (d) The Child and Family Services Act; (e) The Mental Health Services Act; (f) The Public Disclosure Act; (g) The Public Health Act, 1994; (g.1) The Vital Statistics Act, 1995 or any former Vital Statistics Act; (g.2) The Vital Statistics Administration Transfer Act; (h) The Workers' Compensation Act, 1979; (h.1) The Youth Drug Detoxification and Stabilization Act; or Page 14 482 (i) any prescribed Act or regulation or any prescribed provision of an Act or regulation. ... 5 (1) Subject to subsection (2), an individual has the right to consent to the use or disclosure of personal health information about himself or herself. The Freedom of Information and Protection of Privacy Act: 3 (1) This Act does not apply to: ... (b) material that is a matter of public record; or ... (2) This Act binds the Crown. ... 4 This Act: (b) does not in any way limit access to the type of government information or records that is normally available to the public; ... (f) does not prevent access to a registry operated by a government institution where access to the registry is normally allowed to the public. 17 (1) Subject to subsection (2), a head may refuse to give access to a record that could reasonably be expected to disclose: (a) advice, proposals, recommendations, analyses or policy options developed by or for a government institution or a member of the Executive Council; Page 15 483 (b) consultations or deliberations involving: (i) officers or employees of a government institution; (ii) a member of the Executive Council; or (iii) the staff of a member of the Executive Council; (c) positions, plans, procedures, criteria or instructions developed for the purpose of contractual or other negotiations by or on behalf of the Government of Saskatchewan or a government institution, or considerations that relate to those negotiations; (d) plans that relate to the management of personnel or the administration of a government institution and that have not yet been implemented; (e) contents of draft legislation or subordinate legislation; (f) agendas or minutes of: (i) a board, commission, Crown corporation or other body that is a government institution; or (ii) a prescribed committee of a government institution mentioned in subclause (i); or (g) information, including the proposed plans, policies or projects of a government institution, the disclosure of which could reasonably be expected to result in disclosure of a pending policy or budgetary decision. (2) This section does not apply to a record that: ... (b) is an official record that contains a statement of the reasons for a decision that is made in the exercise of a discretionary power or an adjudicative function; ... 24 (1) Subject to subsections (1.1) and (2), "personal information" means personal information about an identifiable individual that is recorded in any Page 16 484 form, and includes: (a) information that relates to the race, creed, religion, colour, sex, sexual orientation, family status or marital status, disability, age, nationality, ancestry or place of origin of the individual; (b) information that relates to the education or the criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved; ... (d) any identifying number, symbol or other particular assigned to the individual, other than the individual's health services number as defined in The Health Information Protection Act; (e) the home or business address, home or business telephone number or fingerprints of the individual; ... (g) correspondence sent to a government institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to the correspondence that would reveal the content of the original correspondence, except where the correspondence contains the views or opinions of the individual with respect to another individual; ... (i) information that was obtained on a tax return or gathered for the purpose of collecting a tax; (j) information that describes an individual's finances, assets, liabilities, net worth, bank balance, financial history or activities or credit worthiness; or (k) the name of the individual where: (i) it appears with other personal information that relates to the individual; or Page 17 485 (ii) the disclosure of the name itself would reveal personal information about the individual. (1.1) "Personal information" does not include information that constitutes personal health information as defined in The Health Information Protection Act. ... (3) Notwithstanding clauses (2)(e) and (f), "personal information" includes information that: (a) is supplied by an individual to support an application for a discretionary benefit; 29 (1) No government institution shall disclose personal information in its possession or under its control without the consent, given in the prescribed manner, of the individual to whom the information relates except in accordance with this section or section 30. (2) Subject to any other Act or regulation, personal information in the possession or under the control of a government institution may be disclosed: (a) for the purpose for which the information was obtained or compiled by the government institution or for a use that is consistent with that purpose; ... (p) where the information is publicly available; ... (t) for any purpose in accordance with any Act or regulation that authorizes disclosure; or The Canadian Charter of Rights and Freedoms Page 18 486 7 Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 8 Everyone has the right to be secure against unreasonable search or seizure. ... 12 Everyone has the right not to be subjected to any cruel and unusual treatment or punishment. ... 24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. THE ISSUES 35 The issues to be determined are as follows: (a) Does the Commission have the authority in its governing legislation to publish its decisions generally or on the Internet? (b) Does provincial privacy legislation preclude the Commission from publishing its decisions generally or on the Internet? (c) Is the potential publication of the decision in the plaintiff's case before the Commission a violation of her s. 7 and/or 8 Charter rights? ANALYSIS (a) Does the Commission have the authority in its governing legislation to publish its decisions generally or on the Internet? 36 The Commission was created pursuant to s. 196.1 of the AAIA. The purpose of the Commission is to hear and determine appeals of decisions made by SGI under Part VIII of the AAIA regarding no fault bodily injury benefits. 37 There are a number of provisions in the AAIA as well as the Regulations that appear relevant Page 19 487 in this appeal. However, these provisions do not provide specific authority for the Commission to publish its decisions generally or on the Internet. As an example, s. 196.4 of the AAIA permits the Commission to make rules governing its proceedings. These rules may be made with respect to "governing the management and conduct of its business and the conduct of the meetings, hearings, reviews and any other proceedings of the appeal commission." However at the commencement of this matter there was no formalized rule respecting publishing decisions on the web and there is still no rule regarding that issue. 38 The rule making powers allows the Commission to promulgate subordinate laws which are published in the Gazette in accordance with s. 196.4(2). However the lack of a rule respecting publishing of the decision generally and publishing the decision on the web specifically is in my view not fatal given my comments which follow. 39 Section 92 of the Regulations provides that all hearings of the Commission are to be open to the public unless otherwise ordered by the Commission. But it also does not provide direct authority that decisions be published on the Internet. 40 Section 193(8) of the AAIA holds that all decisions are to be in writing and provided to the claimant and SGI. The appellant argues that this section should be restrictively interpreted to hold that the Commission is prohibited from publishing its decisions on the Internet. However, this provision is only to ensure that the parties involved in the hearing have access to the reasons for the decision and in my view does not specifically prohibit publication on the web. 41 As can be seen from the discussion above, there is nothing in the AAIA or the Regulations that provides direct authority to the Commission to publish its decisions or prohibits such publication generally or on the Net. 42 Other statutory tribunals with adjudicative functions also publish their decisions. For example, the Saskatchewan Labour Relations Board does so without specific authority under its Act or Regulations. Likewise the Saskatchewan Municipal Board established under The Municipal Board Act S.S. 1988-89, c. M-23.2 as am. which carries out in part a judicial function to judge at a provincial level, appeals from the general public in relation to property tax, planning and development issues and property maintenance orders, publishes its decisions on the web without a specific provision allowing it to do so. In both cases these are specialized tribunals tasked with adjudicating on specific subject matter and issues which takes the burden of adjudication off the court system. The Commission serves a similar function although an aggrieved claimant can at their option choose to access the court system for an appeal. 43 The AAIA augmented by the Regulations sets out the powers of the Commission. However as with many Statutes and Regulations even where procedures are specifically set out there are gaps. Comprehensive codes of procedure are not provided in most cases. 44 Tribunals are given latitude in setting their own procedure. Sopinka JJ. in Prassad v. Canada Page 20 488 (Minister of Employment and Immigration) [1989] 1 S.C.R. 560 in the context of a judicial review application at pp. 568 and 569 stated: In order to arrive at the correct interpretation of statutory provisions that are susceptible of different meanings, they must be examined in the setting in which they appear. We are dealing here with the powers of an administrative tribunal in relation to its procedures. As a general rule, these tribunals are considered to be masters in their own house. In the absence of specific rules laid down by statute or regulation, they control their own procedures subject to the proviso that they comply with the rules of fairness and, where they exercise judicial or quasi-judicial functions, the rules of natural justice. Adjournment of their proceedings is very much in their discretion. In Re Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183 (1971), 22 D.L.R. (3d) 40, the Ontario Court of Appeal was asked to hold that the Labour Relations Board was obliged to adjourn when its jurisdiction was attacked by a motion for certiorari in the High Court. Arnup J.A., speaking for the Court, stressed that the Board was "master of its own house" (p. 49) and was not required to adjourn when served with a notice of motion for certiorari. The Board was free to adopt such procedures as appeared to it to be just and convenient in the particular circumstances. Arnup J.A. concluded, at p. 50: ... it is for the Board itself to decide how it shall proceed. If procedural guide lines of a mandatory nature are to be laid down, they should come from the Legislature and not from the Court. ... 45 As well, s.196.1(9) gives to the Commission any other powers that it considers necessary or incidental to carry out the intent of that part of the AAIA. In my view this includes publishing their decisions, including on the web. 46 Germain argues that publishing the decision is not necessary or helpful because the cases are fact specific. While this is true to some extent, the Commission operates in the common law milieu as the courts do, and listens to and considers arguments that the case before it is either similar or dissimilar to the facts of other cases and that there should be similar or dissimilar treatment. The publication of its decisions allows others who appear before the Commission to argue precedent if they so wish. The publication of the decisions is in my view incidental and necessary to the proper functioning of this tribunal as it is to many other tribunals with an adjudicative function which consider precedent including courts and it generally assists others who appear before the Page 21 489 Commission. Moreover the Commission is part of the administration of justice and the open courts principle referred to later in this decision mandates openness and accessability to the decisions of the Commission. 47 I find that the Commission has authority to publish its decisions, including on the web, despite the absence of statutory or regulatory provisions specifically allowing it to do so. It has this power incidentally pursuant to s. 196.1(a) of the AAIA and at common law pursuant to the doctrine enunciated by Sopinka J. in Prassad, supra. 48 However the inquiry does not end there. These powers may be subject to other legislation which may circumscribe those powers. (b) Does provincial privacy legislation preclude the Commission from publishing its decisions generally or on the Internet? 49 The information which the Commission gathers and may put into the decisions consists of personal medical information and personal financial, employment and other information germane to the issues with which it deals. This would include information which is normally private or confidential. 50 The Commission gathers this information either through the provisions of the AAIA or by way of facts provided to it by Germain in its dealings with her. i. HIPA 51 HIPA is legislation focused on the collection, storage, use and disclosure of personal health information as defined by s. 2(m). I accept that some or all of Germain's health information with which the Commission deals falls into that definition. Section 5(1) provides that an individual has the right to consent to the use or disclosure of their personal health information subject to certain exemptions. 52 Section 4(1) says the Act prevails notwithstanding other legislation. 53 Section 4(4) of HIPA exempts personal health information obtained for the purposes of Part VIII of the AAIA. It states: 4 (4) Subject to subsections (5) and (6), Parts II, IV and V of this Act do not apply to personal health information obtained for the purposes of: ... (b) Part VIII of The Automobile Accident Insurance Act; Page 22 490 54 The Commission hears and determines appeals of decisions made by SGI adjusters regarding no fault bodily injury benefits. To do this, the Commission must have access to personal health information relating to the claimants and be allowed to use it for its purposes. Because the Commission was created and operates pursuant to Part VIII of the AAIA, personal health information with which it deals in the course of hearing and determining an appeal (its purpose) is prima facie exempt because of s. 4(4)(b). 55 The appellant argues that the exemption in s.4(4) is limited to the objects and purposes of Part VIII of the AAIA. That is, they are not bound by HIPA when accessing the personal health information; however, they are bound by HIPA when they attempt to disclose the information without the consent of the appellant. When one takes a closer look at the legislation, it appears that this argument must fail. The words "for the purposes of Part VIII" cover a wide variety of situations related to that part including the mandated collection and voluntary tendering of health information to SGI and the Commission. This is so despite the fact that there is no similar exemption in FOIPP. The creation of a decision after adjudication and provision of it to the public generally on the Net is in my view within the purposes of Part VIII of the AAIA and the incidental powers of the Commission given my previous comments that the Commission has authority generally to do so. 56 Section 4(4) exempts the Commission from Parts II, IV and V of HIPA. Part IV discusses the "Limits on Collection, Use and Disclosure of Personal Health Information by Trustees". The Commission is a trustee as defined by s. 2(4) of HIPA. It is a government institution as defined by 2(h) of HIPA. Government institution is defined by reference to s. 3 of the FOIPP and Appendix 1 thereto. With respect to disclosure, HIPA states: 27 (1) A trustee shall not disclose personal health information in the custody or control of the trustee except with the consent of the subject individual or in accordance with this section, section 28 or section 29. This section is found in Part IV of HIPA. However, despite the fact that the Commission is a trustee it is specifically exempted by s. 4(4) from requiring consent to disclose. The requirement under s. 23(4) to disclose only de-identified personal health information is interestingly also exempted by s. 4(4). 57 Based on the exemption outlined in s. 4(4), it appears that the HIPA does not preclude the Commission from disclosing the health information and therefore publishing its decisions containing health information on the Internet without the consent of the appellant. 58 Part II of HIPA deals with the rights of the individual and consent for use and disclosure, the right to be informed and the right to be informed about disclosure without consent. The appellant argued that she was not informed that her decision would be made public until after she had appealed. However the Commission is exempted from s. 9(1) of HIPA, a Part II right which states that "[a]n individual has the right to be informed about the anticipated uses and disclosures of the individual's personal health information". Page 23 491 59 Part V deals with access to personal health information. The Commission is exempted from this Part as well. 60 However Part III of HIPA is not exempted by s. 4(4). Part III deals with a trustee's duty to protect information by establishing administrative and technical safeguards for example as detailed in s. 16. In my view this Part relates to the protection of information within the confines of the Commission itself, but does not limit or circumscribe the exemptions from the other Parts enumerated. 61 There is in my view given the broad exemption of s. 4(4) nothing in HIPA which would preclude the Commission from using and disclosing the information for its legitimate purposes including publishing the decision on the web. ii. FOIPP 62 FOIPP is legislation focused on an individual's right to privacy with respect to personal information held by government institutions. Section 17 of FOIPP deals with the right of government to refuse to disclose certain information enumerated in ss.(1). It also eliminates that right in ss.(2) when the information is contained in the statement of reasons for a decision made as part of an adjudicative function. In my view it has no application to this case because the Commission is not seeking to keep its decision from the public. 63 Section 4(b) of FOIPP states the Act does not limit access to records normally available to the public. It is common ground that the decision on Germain's case could be accessed by the public even without publishing it on the web. Its publication on the web is in my view a logical extension of public access to the hard copy. Section 4(f) states that the Act does not prevent access to a registry where access to the registry is normally allowed to the public. The official record of the Commission of its decisions is in my view like a registry. It is open to the public. Publication on the net is an extension of this access. 64 Germain argues that the information contained in the decision of the Commission details her health, financial and personal situation. It is undisputed that some or all of it falls into the s. 24(1) definition. Germain argues that it is information that would assist individuals in "stealing her identity". 65 Section 29(1) prohibits the disclosure of personal information. It states: 29 (1) No government institution shall disclose personal information in its possession or under its control without the consent, given in the prescribed manner, of the individual to whom the information relates except in accordance with this section or section 30. 66 Section 24(1) defines "personal information" as "personal information about an identifiable Page 24 492 individual that is recorded in any form" and includes categories of information which Germain complains will be disclosed by the Commission. The definition is restricted by s. 24(1.1) as follows: 24 (1.1) "Personal information" does not include information that constitutes personal health information as defined in The Health Information Protection Act. 67 In short, the privacy of health information as defined in s. 2(m) of HIPA is protected by HIPA not FOIPP. 68 The application of s. 29(1) of FOIPP which mandates consent, is in this situation restricted by s. 3. It states: 3 (1) This Act does not apply to: ... (b) material that is a matter of public record; or ... 69 FOIPP does not define what is a matter of public record. Black's Law Dictionary 8th Edition defines "public record" at p. 1279 as: A record that a governmental unit is required by law to keep, such as land deeds kept at a county courthouse. ! Public records are generally open to view by the public. 70 A number of cases have considered the phrase "public record". In General Motors Acceptance Corporation of Canada v. Perozni, supra, at para. 59, the Alberta District Court concluded that public records "refers to certain records or documents which are kept by certain government officials whose duty it is to inquire into and record permanently matters and facts about public matters. Under this definition would fall ... court and certain government tribunal records." 71 In Sturla v. Freccia (1880), 5 A.C. 633, at p. 643 Lord Blackburn stated: ... I understand a public document there to mean a document that is made for the purpose of the public making use of it, and being able to refer to it. ... 72 I accept all of these three definitions of "public record". The Commission is a public adjudicative body required to make and keep its decisions. Section 92 of the Regulations states that Commission hearings are open to the public unless the Commission orders otherwise. Its decisions are open to the public even without publishing them on the web. Further, s. 95(1) and 95(2)(d) places an obligation on the Commission to compile a record of a hearing that was held, which consists in part of the written decision of the appeal commission. It is common ground that the Page 25 493 decision is on file at the Commission and accessible to the public. The decision of the Commission contains information prepared by a government institution which has a duty to inquire into the issues associated with the hearing and record its findings permanently. 73 Further, it seems illogical that members of the public could sit at the hearing and listen to all of the evidence but not have access to the decision of the Commission. The written decision is the last piece of the hearing process. Public access to decisions made by the Commission is important to assist individuals in presenting their claims and understanding the decision-making process of the Commission and to further the principle of public access to adjudicative bodies. 74 Based on the analysis above, I find that the decision of the Commission are a matter of public record as set forth in s. 3(1)(b). FOIPP and specifically, s. 29, does not operate to require the consent of Germain for the Commission to use her personal information in its decisions nor does it restrict the publishing of the Commission's decision online. Even if consent were required I find that the Commission is covered by s. 29(2)(a), (p) and (t) since the publishing of it is consistent with its mandate as an adjudicative body. 75 There is nothing in FOIPP which prevents the Commission from publishing its decisions and the information they contain generally or on the Net. (c) Is the potential publication of the decision in the plaintiff's case before the Automobile Injury Appeal Commission a violation of her s. 7 and/or 8 Charter rights? i. Section 8 76 Section 8 of the Charter entrenched in the Canadian Constitution the right to be secure against unreasonable search and seizure. It reads as follows: 8. Everyone has the right to be secure against unreasonable search or seizure. 77 In the present case, Germain alleges that s. 8 of the Charter was breached and her right to be secure against unreasonable search and seizure was infringed. 78 Section 8 applies to how information is gathered by state agents. In the present situation, Germain is not contesting how the Commission came to have the information that forms the basis of her appeal decision; she is contesting the use of the information, that is, whether it can be published on the Internet or not. In order to trigger s. 8, the state must have engaged in either a search or seizure. These terms have been defined as follows: A search is an examination, by the agents of the state, of a person's person or property in order to look for evidence. A seizure is the actual taking away, by the agents of the state, of things that could be used as evidence. Page 26 494 Constitutional Law of Canada, Peter Hogg (looseleaf) at 45-4 79 Seizure was further defined by the Supreme Court of Canada in R. v. Dyment, supra as the "taking of a thing from a person by a public authority without that person's consent." 80 The Commission is not a state agent engaged in a search or seizure. It is a civil adjudicative tribunal before which parties voluntarily provide private materials to further their claims. Indeed Germain provided that information after she was advised that the decision would be published. Germain agrees that SGI has under Part VIII the right to procure certain medical information that would normally be private. The Commission has not ordered Germain to produce any documents, nor does it have the power to do so. Subsection 86(5) of the Regulations mandates that certain documentation will be required if a claimant chooses to pursue an appeal. This is to assist the Commission in assessing an appeal's merits, not to gather evidence with a view to laying criminal or regulatory charges. There is no search or seizure in this case. 81 There is no s. 8 Charter violation. ii. Section 7 82 Section 7 of the Charter provides: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 83 It is clear from the case law that the scope of s. 7 of the Charter can extend beyond the sphere of criminal law and apply to the present situation. As discussed in New Brunswick (Minister of Health and Community Services) v. G. (J.), supra, at para. 66, s. 7 applies where there is "state action which directly engages the justice system and its administration." 84 To find an infringement of s. 7 of the Charter there must be a real or imminent deprivation of life, liberty or security of the person that is contrary to the relevant principles of fundamental justice. R. v. White, [1999] 2 S.C.R. 417 at para. 38. The appellant is alleging a violation of her "security of the person" under s. 7. 1. Right to Security of the Person 85 The Supreme Court of Canada has held on a number of occasions that the right to security of the person protects "both the physical and psychological integrity of the individual": G.(J.), supra at para. 58. At issue in this case, is the psychological integrity of the appellant. 86 In R. v. Morgentaler, [1988] 1 S.C.R. 30, at para. 237 and R. v. O'Connor, [1995] 4 S.C.R. Page 27 495 411 at para. 117, Justices Wilson and L'Heureux-Dubé, respectively, stated that s. 7 includes a right to privacy. In R. v. Mills, [1986] 1 S.C.R. 863 at 920, Lamer J., as he then was, recognized that psychological trauma, violating security of the person, could take the form of: ... stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction. ... 87 It appears that the right to security of the person includes a right to privacy where the violation of privacy is sufficient to interfere with one's psychological integrity. 88 Where the psychological integrity of a person is at issue, as alleged in this case, a security of the person violation is limited to "serious state-imposed psychological stress": Morgentaler, supra at para. 56. The quality of the interference "need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety": G.(J.), supra at para. 60. Accordingly, not all government interference with an individual's psychological integrity will engage s. 7. 89 As can be seen from Blencoe v. British Columbia, [2000] 2 S.C.R. 307, the stress must be serious and profound and the individual interests affected must be of "fundamental importance". The right to privacy is of "fundamental importance". 90 The question then is whether the level of stress associated with the Commission publishing their decisions online is "serious and profound". Section 7 does not protect an individual who is suffering from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of being involved in an open adjudicative process. Germain has chosen to become involved in the appeal process and was aware that the process was a public one unless otherwise ordered. This included the knowledge that the information in the decision could normally be accessed by the public. The Commission's practice of publishing its decisions and the stress associated with this bears no resemblance in degree or kind of proceedings in which s. 7 rights are held to be violated: See Morgentaler, supra; Rodriguez, supra. 91 The stress in this situation is not serious or profound so as to meet the standards for a s. 7 violation. 92 Even though this stress may be increased in light of the recent explosion of online identity theft, the Commission has now instituted its Web Posting Policy when publishing their decisions on the Internet, which in my view addresses this concern and attenuates the stress and anxiety that a participant in this process may feel. 2. Principles of Fundamental Justice 93 If I am wrong in this conclusion and the appellant can establish that her s. 7 rights have been infringed, it is then necessary for her to establish that the violation is not in accordance with one or Page 28 496 more principles of fundamental justice. In Rodriguez, supra, the majority of the Supreme Court, at p. 590, held that the expression "principles of fundamental justice" in s. 7 of the Charter implies that there is some consensus that these principles are vital or fundamental to our societal notion of justice. At p. 591, the court went on to hold that "[t]hey must be capable of being identified with some precision and applied to situations in a manner which yields an understandable result. They must also ... be legal principles." 94 The appellant did not refer to specific violation of a principle of fundamental justice in the brief of law filed with the court. However, in her statement of claim, the appellant appears to rely on the lack of "proper notice" as being a principle of fundamental justice that would require the Commission to give appellants better notice that it publishes its decision on the Internet. Although "proper notice" is not a principle of fundamental justice, procedural fairness is: R. v. Rodgers, supra at para. 47. 95 In Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, the Supreme Court said the following regarding the determination of procedural protections to which an individual is entitled to under s. 7 of the Charter: 113 This appeal requires us to determine the procedural protections to which an individual is entitled under s. 7 of the Charter. In doing so, we find it helpful to consider the common law approach to procedural fairness articulated by L'Heureux-Dubé J. in Baker, [1999] 2 S.C.R. 817, supra. In elaborating what is required by way of procedural protection under s. 7 of the Charter in cases of this kind, we wish to emphasize that our proposals should be applied in a manner sensitive to the context of specific factual situations. What is important are the basic principles underlying these procedural protections. The principles of fundamental justice of which s. 7 speaks, though not identical to the duty of fairness elucidated in Baker, are the same principles underlying that duty. As Professor Hogg has said, "The common law rules [of procedural fairness] are in fact basic tenets of the legal system, and they have evolved in response to the same values and objectives as s. 7": see P.W. Hogg, Constitutional Law of Canada (loose-leaf ed.) vol. 2, at para. 44.20. In Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 212-13, Wilson J. recognized that the principles of fundamental justice demand, at a minimum, compliance with the common law requirements of procedural fairness. Section 7 protects substantive as well as procedural rights: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, supra. Insofar as procedural rights are concerned, the common law doctrine summarized in Baker, supra, properly recognizes the ingredients of fundamental justice. 114 We therefore find it appropriate to look to the factors discussed in Baker in Page 29 497 determining not only whether the common law duty of fairness has been met, but also in deciding whether the safeguards provided satisfy the demands of s. 7 ... 115 What is required by the duty of fairness -- and therefore the principles of fundamental justice -- is that the issue at hand be decided in the context of the statute involved and the rights affected: Baker, supra, at para. 21; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, per Sopinka J. More specifically, deciding what procedural protections must be provided involves consideration of the following factors: (1) the nature of the decision made and the procedures followed in making it, that is, "the closeness of the administrative process to the judicial process"; (2) the role of the particular decision within the statutory scheme; (3) the importance of the decision to the individual affected; (4) the legitimate expectations of the person challenging the decision where undertakings were made concerning the procedure to be followed; and (5) the choice of procedure made by the agency itself; Baker, supra, at paras. 23-27. This is not to say that other factors or considerations may not be involved. This list of factors is non-exhaustive in determining the common law duty of fairness: Baker, supra, at para. 28. It must necessarily be so in determining the procedures demanded by the principles of fundamental justice. 96 The lack of notice in this case regarding publishing decisions did not violate the principles of fundamental justice of procedural fairness. The right of the Commission to publish its decisions is an incidental power to the hearing being of a public nature and applicants to the Commission do not have in every case a right to be heard on this issue. 97 The open court principle also applies to the Commission. This is so despite the fact that it is not a court. The principle is not restricted to courts only, but is a theme running through the administration of justice in this country. 98 Germain admits that if her matter were before a court then the decision would be published on the web. It would be anomalous to hold that just because Germain chooses the tribunal to press her claim that the adjudicative function and decision is substantially different than if she went to a court. Both forums are tasked at the choice of Germain to determine an issue which is part of the administration of justice generally and that task and determination must be public. 99 Social interests and other values are balanced against a claimant's rights within a s. 7 analysis. In Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 at 879, for example, an accused's right to a fair trial was balanced against society's interest in an open court process. In the present matter, the plaintiff's privacy interests must also be weighed against free expression values and the open court principle. Page 30 498 100 In R. v. Mentuck, [2001] 3 S.C.R. 442 at para. 39 the Supreme Court stressed the fundamental importance of open courts: 39 It is precisely because the presumption that courts should be open and reporting of their proceedings should be uncensored is so strong and so highly valued in our society that the judge must have a convincing evidentiary basis for issuing a [publication] ban. ... [Emphasis Added] 101 In Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 the court made the following apposite comments regarding the rights of listeners to be informed of court proceedings at paras. 17, 22 and 23: 17 ... [Section 2(b)] involves the scope of public entitlement to have access to these courts and to obtain information pertaining to court proceedings. ... In particular, it involves recognition of the integral role played by the media in the process of informing the public. Both of these issues involve the democratic function of public criticism of the courts, which depends upon an informed public; in turn, both relate to the principle of openness of the criminal courts. ... 22 ... The open court principle, see as "the very soul of justice" and the "security of securities", acts as a guarantee that justice is administered in a non-arbitrary manner, according to the rule of law. ... 23 ... While the freedom to express ideas and opinions about the operation of the courts is clearly within ... s. 2(b), so too is the right of members of the public to obtain information about the courts in the first place. ... 102 The principle has been applied to require media access to court exhibits themselves (let alone court decisions) while proceedings are ongoing. 103 The interplay between privacy and public access to judicial records is best summed up by The Attorney General of Nova Scotia and Ernest Harold Grainger v. Linden MacIntyre, et al, [1982] 1 S.C.R. 175 where Dickson J. stated at pp. 185-187: Let me deal first with the 'privacy' argument. This is not the first occasion on which such an argument has been tested in the courts. Many times it has been Page 31 499 urged that the 'privacy' of litigants requires that the public be excluded from court proceedings. It is now well established, however, that covertness is the exception and openness the rule. Public confidence in the integrity of the court system and understanding of the administration of justice are thereby fostered. As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings. The following comments of Laurence J. in R. v. Wright, 8 T.R. 293, are apposite and were cited with approval by Duff J. in Gazette Printing Co. v. Shallow (1909), 41 S.C.R. 339 at p. 359: Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings. The leading case is the decision of the House of Lords in Scott v. Scott, [1913] A.C. 417. In the later case of McPherson v. McPherson, [1936] A.C. 177, at p. 200, Lord Blanesburgh, delivering the judgment of the Privy Council, referred to "publicity" as the "authentic hall-mark of judicial as distinct from administrative procedure". ... The cases mentioned, however, and many others which could be cited, establish the broad principle of "openness" in judicial proceedings, whatever their nature, and in the exercise of judicial powers. ... ... The authorities have held that subject to a few well-recognized exceptions, as in the case of infants, mentally disordered persons or secret processes, all judicial proceedings must be held in public. The editor of Halsbury's 4th Edition states the rule in these terms: In general, all cases, both civil and criminal, must be heard in open court, but in certain exceptional cases, where the administration of justice would be rendered impractical by the presence of the public, the court may sit in camera [Vol. 10, para. 705, at p. 316]. At every stage the rule should be one of public accessibility and concomitant Page 32 500 judicial accountability ... In my view, curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance. ... 104 These dicta are still the law in Canada and in my view apply to adjudicative tribunals which although not courts, have a quasi-judicial function. The Commission is such a tribunal because it makes decisions based on Germain's legal rights under the AAIA. Germain's claim to privacy regarding publication on the net cannot withstand the force of the open courts principle. She has the onus of demonstrating limitations on public accessability and I agree with the Commission in this case that she has not proven societal values of superordinate importance nor any other exceptional circumstance which would warrant a limit. She has not met this onus. 105 There is no violation of any principles of fundamental justice in this case. The Commission's new Net Policy in my view properly balances Germain's concerns regarding identity theft with the open courts principle. 106 Based on the reasons outlined above, the Commission is not prohibited from publishing its decisions online on the basis of the Charter. CONCLUSION 107 Nothing in the AAIA and its regulations, HIPA, FOIPP or the Charter prevent the Commission from publishing its decision regarding Germain's claim on the web or otherwise. The claim of Germain is dismissed. 108 On the issue of costs, in my view this matter would probably have been moot if the Commission would have had its policy respecting the editing of decisions in place either before Germain's court application was made or once it became alive to this issue. Rather than use Germain's request in August of 2004 to formulate a policy it took a number of years for the Commission to react. 109 The Commission tendered its new Net Policy to the court shortly before the rehearing of this matter. In my view given the contents of the policy, it could have been produced long ago. The new policy addresses many if not all of the concerns of Germain. The courts have been editing their judgments for some number of years in cases where there is sensitive information. Unfortunately the Commission's epiphany respecting this issue took some time in coming. Time which resulted in my view probably in needless effort and cost. 110 Rule 574(2)(a) provides the court discretion to order costs against a successful party. In my view because of my preceding comments, this is a case where I should exercise that discretion. Page 33 501 111 The Commission, but not the individual defendants shall pay Germain her party-party costs including disbursements under Column 4 for those aspects of this matter for which an order for costs has not already been made including without limiting the foregoing, the previous proceedings as well as the application whereby the Commission sought to have the new Net Policy entered in evidence. This shall include inter alia any disbursement that she has made for transcripts of the previous trial. If the parties cannot agree on the quantum of costs they shall be taxed. R.K. OTTENBREIT J. cp/e/qlcct/qlpwb/qlaxw/qlced/qlmxl/qlcas/qlcas/qljyw Page 34 502 Case Name: Lukács v. Canada (Transportation Agency) Between Dr. Gábor Lukács, Appellant, and Canadian Transportation Agency, Respondent [2014] F.C.J. No. 301 2014 FCA 76 456 N.R. 186 Docket: A-279-13 Federal Court of Appeal Halifax, Nova Scotia Dawson and Webb JJ.A. and Blanchard J.A. (ex officio) Heard: January 29, 2014. Judgment: March 19, 2014. (63 paras.) Administrative law -- Judicial review and statutory appeal -- Standard of review -- Reasonableness -- Appeal by Lukacs from Agency's decision to enact quorum rule dismissed -- Without approval of Governor in Council, Agency enacted rule that provided that in all proceedings before Agency, one members constituted quorum -- Agency's decision to enact quorum rule pursuant to rule-making power, which did not require approval of Governor in Council, was reasonable given contextual and purposive interpretation of Act -- Governor in Council's prior approval of rules did not mean approval of quorum rule was required as approval of rules was unnecessary step and quorum rule did not vary or rescind any rule that had been approved. Administrative law -- Bodies under review -- Nature of body -- Types -- Regulatory agencies -- Powers or functions -- Types -- Appeal by Lukacs from Agency's decision to enact quorum rule dismissed -- Without approval of Governor in Council, Agency enacted rule that provided that in all proceedings before Agency, one members constituted quorum -- Agency's decision to enact quorum rule pursuant to rule-making power, which did not require approval of Governor in Council, was Page 1 503 reasonable given contextual and purposive interpretation of Act -- Governor in Council's prior approval of rules did not mean approval of quorum rule was required as approval of rules was unnecessary step and quorum rule did not vary or rescind any rule that had been approved. Statutory interpretation -- Statutes -- Construction -- By context -- Legislative intent -- Appeal by Lukacs from Agency's decision to enact quorum rule dismissed -- Without approval of Governor in Council, Agency enacted rule that provided that in all proceedings before Agency, one members constituted quorum -- Agency's decision to enact quorum rule pursuant to rule-making power, which did not require approval of Governor in Council, was reasonable given contextual and purposive interpretation of Act -- Governor in Council's prior approval of rules did not mean approval of quorum rule was required as approval of rules was unnecessary step and quorum rule did not vary or rescind any rule that had been approved. Appeal by Lukacs from the Canada Transportation Agency's decision to enact a rule (the "quorum rule") that provided that in all proceedings before the Agency, one member constituted a quorum. Prior to the enactment of the quorum rule, two members of the Agency constituted a quorum. The quorum rule was not made with the approval of the Governor in Council. The appellant took the position that the rules governing the conduct of the proceedings before the Agency were regulations within the meaning of s. 36(1) of the Canada Transportation Act and as such could only be made with the approval of the Governor in Council and that as the rules were originally approved by the Governor in Council, they could not be amended without the approval of the Governor in Council. The Agency argued that the quorum rule was a rule respecting the number of members that were required to hear any matter or perform any function of the Agency and, as such, it could be enacted by the Agency pursuant to the Agency's rule-making power in s. 17 of the Act. HELD: Appeal dismissed. The appropriate standard of review was reasonableness as the issue was whether the Agency properly interpreted its rule-making power contained in its home statute. The Agency's decision to enact the quorum rule pursuant to its rule-making power, so that the approval of the Governor in Council was not required, was reasonable. A contextual analysis of the Canada Transportation Act suggested that rules held a subsidiary position to orders or regulations, which was consistent with the view that rules were created by the Agency on its own initiative, while order came at the end of an adjudicative process and regulations must be approved by the Governor in Council. Furthermore, the interpretation of "rules" as a subset of "regulation" violated the presumption against tautology. Moreover, whenever "rule" appeared in the Act, it was in the context of internal procedural or non-adjudicative administrative matters and wherever "regulation" appeared in the Act it referred to more than internal, procedural matters. In addition, since the Act specifically required Federal Court judges to receive approval from the Governor in Council when establishing rules of procedure but there was no express requirement for the Agency to do so, the application of the expressio unius maxim was consistent with the interpretation that the Agency's rules were not subject to that requirement. Furthermore, under the former Act, the predecessor of the Agency had the power to make rules with the approval of the Governor in Council. Interpreting Page 2 504 the Act so as to not include rules as a subset of regulations (so as to allow the Agency to enact rules without Governor in Council approval) was consistent with the purpose of the Agency as envisioned in the Act. The fact that the Governor in Council had approved the Rules in 2005 did not mean that the approval of the Governor in Council was required to amend the rules. Firstly, Governor in Council approval in 2005 was an unnecessary step. Secondly, the quorum rule was new and did not rescind or vary any provision of the rules that was previously approved by the Governor in Council. Statutes, Regulations and Rules Cited: Canada Transportation Act, S.C. 1996, c. 10, s. 4(1), s. 16(1), s. 17, s. 17(a), s. 17(b), s. 17(c), s. 25, s. 25.1(4), s. 29(1), ss. 34-36, s. 34(1), s. 34(2), s. 36(1), s. 36(2), s. 41, s. 54, s. 86(1), s. 86.1, s. 92(3), s. 109, s. 117(2), s. 128(1), s. 163(1), s. 169.36(1), s. 170 Canadian Transportation Agency General Rules, SOR/2005-35, Rule 2.1 Interpretation Act, R.S.C. 1985, c. I-21, s. 2(1), s. 3(3), s. 15(2)(b), s. 35(1) National Transportation Act, 1987, c. 28 (3rd Supp.), s. 22, s. 22(1) Statutory Instruments Act, R.S.C. 1985, c. S-22, s. 2(1) Counsel: Dr. Gábor Lukács, the Appellant (on his own behalf). Simon-Pierre Lessard, for the Respondent. The judgment of the Court was delivered by 1 DAWSON J.A.:-- This is an appeal on a question of law, brought with leave of this Court pursuant to section 41 of the Canada Transportation Act, S.C. 1996, c. 10 (Act). The question concerns the validity of a rule amending the Canadian Transportation Agency General Rules, SOR/2005-35 (Rules). The amendment added a single section to the Rules: Rule 2.1 (Quorum Rule). The Quorum Rule is brief, and states 'In all proceedings before the Agency, one member constitutes a quorum". The Quorum Rule was published in the Canada Gazette Part II as SOR/2013-133. Prior to the enactment of the Quorum Rule, two members of the Agency constituted a quorum. 2 The evidentiary basis for the appeal is simple and undisputed: the Quorum Rule was not made Page 3 505 with the approval of the Governor in Council. 3 The appellant argues that the rules governing the conduct of proceedings before the Agency, including the Quorum Rule, are regulations within the meaning of subsection 36(1) of the Act. As such, the Quorum Rule could only be made with the approval of the Governor in Council. Additionally, the appellant argues that the Rules were originally approved by the Governor in Council. It follows, the appellant argues, that the Rules could not be amended without the approval of the Governor in Council. 4 The Agency responds that the Quorum Rule is a rule respecting the number of members that are required to hear any matter or perform any of the functions of the Agency. Accordingly, the Agency could enact the Quorum Rule pursuant to its rule-making power found in section 17 of the Act. 5 Notwithstanding the appellant's able submissions, for the reasons that follow I have concluded that the Agency's decision to enact the Quorum Rule pursuant to its rule-making power (so that the approval of the Governor in Council was not required) was reasonable. The Applicable Legislation 6 The Act contains a quorum provision that is expressly subjected to the Agency's rules: 16. (1) Subject to the Agency's rules, two members constitute a quorum. * * * 16. (1) Sous réserve des règles de l'Office, le quorum est constitué de deux membres. 7 The Agency's rule-making power is as follows: 17. The Agency may make rules respecting (a) the sittings of the Agency and the carrying on of its work; (b) the manner of and procedures for dealing with matters and business before the Agency, including the circumstances in which hearings may be held in private; and (c) the number of members that are required to hear any matter or perform any of the functions of the Agency under this Act or any other Act of Parliament. [Emphasis added.] Page 4 506 * * * 17. L'Office peut établir des règles concernant : a) ses séances et l'exécution de ses travaux; b) la procédure relative aux questions dont il est saisi, notamment pour ce qui est des cas de huis clos; c) le nombre de membres qui doivent entendre les questions ou remplir telles des fonctions de l'Office prévues par la présente loi ou une autre loi fédérale. [Le souligné est de moi.] 8 The relevant provision of the Act dealing with regulations states: 36. (1) Every regulation made by the Agency under this Act must be made with the approval of the Governor in Council. (2) The Agency shall give the Minister notice of every regulation proposed to be made by the Agency under this Act. * * * 36. (1) Tout règlement pris par l'Office en vertu de la présente loi est subordonné à l'agrément du gouverneur en conseil. (2) L'Office fait parvenir au ministre un avis relativement à tout règlement qu'il entend prendre en vertu de la présente loi. The Standard of Review 9 The parties disagree about the standard of review to be applied. 10 The appellant argues that the issue of whether the Agency was authorized to enact the Quorum Rule without the approval of the Governor in Council is a true question of jurisdiction, or vires. As a result, he submits the applicable standard of review is correctness (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraph 59). In oral argument, the appellant also argued that a quorum requirement is a question of law that is both of central importance to the legal system as a whole and outside the Agency's specialized area of expertise so that the validity of the Quorum Rule should be reviewed on the standard of correctness. 11 The respondent counters that in more recent jurisprudence the Supreme Court of Canada has held that true questions of jurisdiction are narrow and exceptional, and that an administrative Page 5 507 tribunal's interpretation of its own statute should be presumed to be reviewable on the standard of reasonableness (Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at paragraphs 33 and 39). 12 I agree that what is at issue is whether the Agency properly interpreted its rule-making power contained in its home statute. Pursuant to Alberta Teachers', the presumption of reasonableness review applies. In my view, the presumption of reasonableness review has not been rebutted. 13 As recently discussed by the Supreme Court in McLean v. British Columbia (Securities Commission), 2013 SCC 67, 452 N.R. 340, at paragraphs 32 and 33, legislatures do not always speak with clarity. As a result, applying the principles of statutory interpretation may not always provide a single, clear interpretation of a provision. The resolution of unclear language in an administrative agency's home statute is usually best left to the agency, because the choice between competing reasonable interpretations will often involve policy considerations the legislature presumably wanted the agency to decide. 14 For two reasons I reject the assertion that a quorum rule raises a general question of law of central importance to the legal system outside the expertise of the Agency. 15 First, while conceptually quorum requirements are of importance to the fair administration of justice, it does not follow that the Agency's choice between a quorum of one or two members is a question of central importance to the legal system as a whole. In my view, it is not. The Quorum Rule does not seek to define quorum requirements for any other body than the Agency itself. 16 Second, the Supreme Court has rejected such a narrow view of the expertise of an administrative agency or tribunal. It is now recognized that courts may not be as well-qualified as a given agency to provide an interpretation of the agency's home statute that makes sense in the broad policy context in which the agency operates (McLean, at paragraphs 30 and 31, citing, among other authorities, Council of Canadians with Disabilities v. Via Rail, Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, at paragraph 92 and Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471, at paragraph 25. 17 It follows that the Agency's interpretation of its rule-making authority is a question reviewable on the standard of reasonableness. 18 Before leaving the issue of the standard of review I will deal with two authorities raised by the appellant in reply, which were, as a result, the subject of supplementary written submissions. 19 The two authorities are Council of Independent Community Pharmacy Owners v. Newfoundland and Labrador, 2013 NLCA 32, 360 D.L.R. (4th) 286, and Yates v. Newfoundland and Labrador (Regional Appeal Board), 2013 NLTD(G) 173, 344 Nfld. & P.E.I.R. 317. 20 In my view both decisions are distinguishable. At issue in the first case was whether Page 6 508 regulations enacted by the Lieutenant-Governor in Council were ultra vires. In the second case, the Court's attention was not drawn to the decisions of the Supreme Court in Alberta Teachers' and McLean. I am not persuaded either case supports the appellant's position. The Applicable Principles of Statutory Interpretation 21 Whether rules made under section 17 of the Act must be approved by the Governor in Council depends upon the interpretation to be given to the word "regulation" as used in subsection 36(1) of the Act. 22 The preferred approach to statutory interpretation has been expressed in the following terms by the Supreme Court: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. See: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at paragraph 21. See also: R. v. Ulybel Enterprises Ltd., 2001 SCC 56, [2001] 2 S.C.R. 867 at paragraph 29. 23 The Supreme Court restated this principle in Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 at paragraph 10: It has been long established as a matter of statutory interpretation that "the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": see 65302 British Columbia Ltd. v. Canada, [1999] 3 S.C.R. 804, at para. 50. The interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole. 24 This formulation of the proper approach to statutory interpretation was repeated in Celgene Corp. v. Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R. 3 at paragraph 21, and Canada (Information Commissioner) v. Canada (Minister of National Defence), 2011 SCC 25, [2011] 2 S.C.R. 306 at paragraph 27. Page 7 509 25 Inherent in the contextual approach to statutory interpretation is the understanding that the grammatical and ordinary sense of a provision is not determinative of its meaning. A court must consider the total context of the provision to be interpreted "no matter how plain the disposition may seem upon initial reading" (ATCO Gas and Pipelines Ltd. v. Alberta (Energy and Utilities Board), 2006 SCC 4, [2006] 1 S.C.R. 140 at paragraph 48). From the text and this wider context the interpreting court aims to ascertain legislative intent, "[t]he most significant element of this analysis" (R. v. Monney, [1999] 1 S.C.R. 652 at paragraph 26). Application of the Principles of Statutory Interpretation 26 I therefore turn to the required textual, contextual and purposive analysis required to answer this question. (i) Textual Analysis 27 The appellant argues that the definitions of"regulation" found in the Interpretation Act, R.S.C. 1985, c. I-21 and the Statutory Instruments Act, R.S.C. 1985, c. S-22 decide the meaning of "rules" under the Act. The appellant's argument relies on paragraph 15(2)(b) of the Interpretation Act, which states: 15. (2) Where an enactment contains an interpretation section or provision, it shall be read and construed [...] (b) as being applicable to all other enactments relating to the same subject-matter unless a contrary intention appears. * * * 15. (2) Les dispositions définitoires ou interprétatives d'un texte : ... b) s'appliquent, sauf indication contraire, aux autres textes portant sur un domaine identique. 28 Subsection 2(1) of the Interpretation Act provides that: 2. (1) In this Act, Page 8 510 "regulation" includes an order, regulation, rule, rule of court, form, tariff of costs or fees, letters patent, commission, warrant, proclamation, by-law, resolution or other instrument issued, made or established (a) in the execution of a power conferred by or under the authority of an Act, or (b) by or under the authority of the Governor in Council. [Emphasis added.] * * * 2. (1) Les définitions qui suivent s'appliquent à la présente loi. "règlement" Règlement proprement dit, décret, ordonnance, proclamation, arrêté, règle judiciaire ou autre, règlement administratif, formulaire, tarif de droits, de frais ou d'honoraires, lettres patentes, commission, mandat, résolution ou autre acte pris : a) soit dans l'exercice d'un pouvoir conféré sous le régime d'une loi fédérale; b) soit par le gouverneur en conseil ou sous son autorité. [Le souligné est de moi.] 29 Similarly, subsection 2(1) of the Statutory Instruments Act provides: 2. (1) In this Act, "regulation" means a statutory instrument (a) made in the exercise of a legislative power conferred by or under an Act of Parliament, or (b) for the contravention of which a penalty, fine or imprisonment is prescribed by or under an Act of Parliament, Page 9 511 and includes a rule, order or regulation governing the practice or procedure in any proceedings before a judicial or quasi-judicial body established by or under an Act of Parliament, and any instrument described as a regulation in any other Act of Parliament. [Emphasis added.] * * * 2. (1) Les définitions qui suivent s'appliquent à la présente loi. "règlement" Texte réglementaire : a) soit pris dans l'exercice d'un pouvoir législatif conféré sous le régime d'une loi fédérale; b) soit dont la violation est passible d'une pénalité, d'une amende ou d'une peine d'emprisonnement sous le régime d'une loi fédérale. Sont en outre visés par la présente définition les règlements, décrets, ordonnances, arrêtés ou règles régissant la pratique ou la procédure dans les instances engagées devant un organisme judiciaire ou quasi judiciaire constitué sous le régime d'une loi fédérale, de même que tout autre texte désigné comme règlement par une autre loi fédérale. [Le souligné est de moi.] 30 In the alternative, even if the definitions of "regulation"do not formally apply to the Act, the appellant submits that they are declaratory of the usual and ordinary meaning of the word "regulation". It follows, the appellant argues, that the word "regulation" found in subsection 36(1) of the Act includes "rules" made under section 17, so that the Agency was required to obtain the Governor in Council's approval of the Quorum Rule. 31 There are, in my view, a number of difficulties with these submissions. 32 First, the definition of "regulation" in subsection 2(1) of the Interpretation Act is preceded by the phrase "In this Act". This is to be contrasted with subsection 35(1) of the Interpretation Act which contains definitions that are to be applied "[i]n every enactment". As the word "regulation" is not found in subsection 35(1), the logical inference is that the definition found in subsection 2(1) is not to be applied to other enactments. 33 Similarly, the word "regulation" is defined in the Statutory Instruments Act only for the Page 10 512 purpose of that Act. 34 Second, paragraph 15(2)(b) of the Interpretation Act is subject to the caveat "unless a contrary intention" is evidenced in the enactment under consideration. For reasons developed in the contextual analysis, I am of the view that the Act does demonstrate such a contrary intention. 35 Third, subsection 3(3) of the Interpretation Act states that "[n]othing in this Act excludes the application to an enactment of a rule of construction applicable to that enactment and not inconsistent with this Act." This further limits the application of paragraph 15(2)(b) of the Interpretation Act. 36 Notwithstanding these difficulties, I agree that there is some potential ambiguity in the plain meaning of the word "regulation"in that in some contexts it can include a "rule". Where the word "regulation"can support more than one ordinary meaning, the meaning of the word plays a lesser role in the interpretive process. I therefore turn to the contextual analysis to read the provisions of the Act as a harmonious whole. (ii) Contextual Analysis 37 An electronic search of the Act discloses that the word "rule" is used in the order of 11 different provisions, while "regulation"is found in over 30 provisions. In no case are the words used interchangeably. For example, at subsection 4(1) of the Act, "orders and regulations" made under the Act relating to transportation matters take precedence over any "rule, order or regulation" made under any other Act of Parliament. Similarly, under section 25 of the Act, the Agency is granted all powers vested in superior courts to, among other things, enforce "orders and regulations" made under the Act. The absence of reference to "rules" in both provisions suggests rules hold a subsidiary position to orders or regulations. This interpretation is consistent with the view that rules are created by the Agency on its own initiative, while orders come at the end of an adjudicative process and regulations must be approved by the Governor in Council. 38 Other provisions relevant to the contextual analysis are sections 34 and 36 of the Act. Subsection 34(2) requires the Agency to give to the Minister notice of every rule proposed under subsection 34(1) (which deals with the fixing of license and permit fees). Subsection 36(2) similarly requires the Agency to give the Minister notice of every regulation proposed to be made under the Act. If rules are a subset of regulations, subsection 34(2) would be redundant, because the Minister must be notified of all proposed regulations. The interpretation of "rules" as a subset of "regulation" would violate the presumption against tautology, where Parliament is presumed to avoid speaking in vain (Quebec (Attorney General) v. Carrières Ste. Thérèse Ltée, [1985] 1 S.C.R. 831, at page 838. 39 Moreover, whenever "rule" appears in the Act it is in the context of internal procedural or non-adjudicative administrative matters. See: Page 11 513 * subsection 16(1): dealing with the quorum requirement; * subsection 17(a): dealing with sittings of the Agency and the carrying on of its work; * subsection 17(b): concerning procedures and business before the Agency, including the circumstances in which hearings may be held in private; * subsection 17(c) dealing with a number of members required to hear any matter or perform any of the functions of the Agency; * subsection 25.1(4): dealing with the Agency's right to make rules specifying a scale under which costs are taxed; * subsection 34(1): dealing with fixing fees for, among other things, applications, licenses and permits; * section 109: dealing with the right of judges of the Federal Court to, with the approval of the Governor in Council, make general rules regarding the practice and procedure of the Court in relation to insolvent railways; * subsection 163(1): providing that in the absence of agreement to the contrary, the Agency's rules of procedure apply to arbitrations; and * subsection 169.36(1): dealing with the right of the Agency to make rules of procedure for an arbitration. 40 In contrast, the Act's use of the word"regulations" generally refers to more than merely internal, procedural matters. For example: * subsection 86(1): the Agency can make regulations relating to air services; * section 86.1: the Agency shall make regulations respecting advertising of prices for air services within or originating in Canada; * subsection 92(3): the Agency can make regulations concerning the adequacy of liability insurance for a railway; * subsection 117(2): the Agency may make regulations with respect to information to be contained in a railway tariff; * subsection 128(1): the Agency can make regulations relating to the interswitching of rail traffic; and * section 170: the Agency can make regulations for the purpose of eliminating undue obstacles in the transportation network to the mobility of persons with disabilities. 41 The dichotomy between internal/procedural matters on one hand and external/substantive on the other is reflected in section 54 of the Act, which provides that the appointment of receivers or managers does not relieve them from complying with the Act and with the "orders, regulations, and directions made or issued under this Act". The absence of "rules" from this listing is consistent with the interpretation that, in the context of the Act, rules only apply to procedural matters and not the substantive operations that a receiver or manager would be charged with. This interpretation also accords with the presumption of consistent expression, since it is generally inferred that "[w]hen an Page 12 514 Act uses different words in relation to the same subject such a choice by Parliament must be considered intentional and indicative of a change in meaning or a different meaning" (Peach Hill Management Ltd. v. Canada, [2000] F.C.J. No. 894, 257 N.R. 193, at paragraph 12 (F.C.A.). 42 Another relevant provision is section 109, which requires Federal Court judges to seek approval from the Governor in Council when establishing rules of procedure for matters relating to insolvent railways. Two possible conclusions may be taken from this provision. First, it could imply that the Agency's rules are also subject to Governor in Council approval. Second, it could imply that since Federal Court judges are explicitly required to seek such approval, the absence of that same requirement under section 17 is indicative of Parliament's intent that the Agency is not required to seek such approval. 43 The latter interpretation is, in my view, the better view. It is in accordance with the maxim of statutory interpretation expressio unius exclusio alterius, which in essence states that consistent drafting requires that some legislative silences should be seen as deliberate. While this maxim should be approached with caution, the Supreme Court has relied on similar reasoning to find Parliament's inclusion of express limitations in some sections of an act as evidence Parliament did not intend those limitations to be included in other provisions where the exceptions are not explicitly stated (Ulybel Enterprises at paragraph 42). 44 In the present case, since the Act specifically requires Federal Court judges to receive approval from the Governor in Council when establishing rules of procedure, the application of the exclusio unius maxim is consistent with the interpretation that the Agency's rules are not subject to this requirement. 45 There is a further, final contextual aid, found in the legislative evolution of the Act. In Ulybel Enterprises at paragraph 33, the Supreme Court noted that prior enactments may throw light on Parliament's intent when amending or adding to a statute. 46 The predecessor to the Agency, the National Transportation Agency (NTA), was governed by the National Transportation Act,1987, c. 28 (3rd Supp.) (former Act). 47 Pursuant to subsection 22(1) of the former Act, the NTA had the power to make rules with the approval of the Governor in Council: 22. (1) The Agency may, with the approval of the Governor in Council, make rules respecting (a) the sittings of the Agency and the carrying on of its work; (b) the manner of and procedures for dealing with matters and business Page 13 515 before the Agency, including the circumstances in which in camera hearings may be held; and (c) the number of members of the Agency that are required to hear any matter or exercise any of the functions of the Agency under this Act or any other Act of Parliament. (2) Subject to the rules referred to in subsection (1), two members of the Agency constitute a quorum. [Emphasis added.] * * * 22. (1) L'Office peut, avec l'approbation du gouverneur en conseil, établir des règles concernant: a) ses séances et l'exécution de ses travaux; b) la procédure relative aux questions dont il est saisi, notamment pour ce qui est des cas de huis clos; c) le nombre de membres qui doivent connaître des questions ou remplir telles des fonctions de l'Office prévues par la présente loi ou une autre loi fédérale. (2) Sous réserve des règles visées au paragraphe (1), le quorum est constitué de deux membres. [Le souligné est de moi.] 48 In 1996, the former Act was replaced with the current regime. Section 22 of the former Act was replaced by nearly identical provisions contained in subsection 16(1) and section 17 of the current Act. There was one significant difference: the requirement to obtain Governor in Council approval for the rules was removed. In my view, this demonstrates that Parliament intended that the Agency not be required to obtain Governor in Council approval when making rules pursuant to section 17 of the Act. 49 Before leaving the contextual analysis, for completeness, I note that at the hearing of this appeal counsel for the Agency indicated that he no longer relied on the clause-by-cause analysis of section 17 of the Act as an aid to interpretation. As such, it has formed no part of my analysis. Page 14 516 (iii) Purposive Analysis 50 The Agency has a broad mandate in respect of all transportation matters under the legislative authority of Parliament. The Agency performs two key functions. 51 First, in its role as a quasi-judicial tribunal, it resolves commercial and consumer transportation-related disputes. Its mandate was increased to include resolving accessibility issues for persons with disabilities. 52 Second, the Agency functions as an economic regulator, making determinations and issuing licenses and permits to carriers which function within the ambit of Parliament's authority. In both roles the Agency may be called to deal with matters of significant complexity. 53 Subsection 29(1) of the Act requires the Agency to make its decision in any proceeding before it as expeditiously as possible, but no later than 120 days after the originating documents are received (unless the parties agree otherwise or the Governor in Council shortens the time frame by regulation). 54 The mandate of the Agency when viewed through the lens that it must act with celerity requires an efficient decision-making process. Efficient processes are the result of a number of factors, not the least of which are rules of procedure that establish efficient procedures and that are flexible and able to react to changing circumstances. 55 In my view, interpreting subsection 36(1) of the Act to not include rules as a subset of regulations (so as to allow the Agency to enact rules without Governor in Council approval) is consistent with the purpose of the Agency as envisioned in the Act. (iv) Conclusion of Statutory Interpretation Analysis 56 Having conducted the required textual, contextual and purposive analysis, I am satisfied the Agency's interpretation of the Act was reasonable. While there may be a measure of ambiguity in the text of the Act, the Act's context and purpose demonstrate that the Agency's interpretation fell within a range of acceptable outcomes. 57 There remains to consider the appellant's final argument. What, if anything, is the Effect of Governor in Council Approval of the Rules in 2005? 58 As noted above, the appellant argues that because the Rules were approved by the Governor in Council, they could not be amended without Governor in Council approval. 59 In my view, there are two answers to this argument. 60 First, while the Regulatory Impact Analysis Statement which accompanied the Rules in 2005 Page 15 517 stated that Governor in Council approval was required for the enactment of the Rules, such a statement does not bind this Court. Regulatory Impact Analysis Statements do not form part of the substantive enactment (Astral Media Radio Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2010 FCA 16, [2011] 1 F.C.R. 347, at paragraph 23). As the Agency later reasonably concluded that Governor in Council approval was not required to enact the Quorum Rule, it follows that Governor in Council approval in 2005 was an unnecessary step that does not limit or bind the Agency now or in the future. 61 Second, the Quorum Rule is new. It does not vary or rescind any provision in the Rules that could be said to be previously approved by the Governor in Council. Conclusion 62 For these reasons, I would dismiss the appeal. In the circumstances where the appeal was in the nature of public interest litigation and the issue raised by the appellant was not frivolous, I would award the appellant his disbursements in this Court. 63 In the event the parties are unable to reach agreement on the disbursements, they shall be assessed. DAWSON J.A. WEBB J.A.:-- I agree. BLANCHARD J.A. (ex officio):-- I agree. Page 16 518 Date: 20140919 Docket: A-218-14 Citation: 2014 FCA 205 Present: WEBB J.A. BETWEEN: DR. GÁBOR LUKÁCS Applicant and CANADIAN TRANSPORTATION AGENCY Respondent Dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario, on September 19, 2014. REASONS FOR ORDER BY: WEBB J.A. 519 Date: 20140919 Docket: A-218-14 Citation: 2014 FCA 205 Present: WEBB J.A. BETWEEN: DR. GÁBOR LUKÁCS Applicant and CANADIAN TRANSPORTATION AGENCY Respondent REASONS FOR ORDER WEBB J.A. [1] Dr. Gábor Lukács, on April 22, 2014, commenced “an application for judicial review in respect of: (a) the practices of the Canadian Transport Agency (“Agency”) related to the rights of the public, pursuant to the open-court principle, to view information provided in the course of adjudicative proceedings; and 520 Page: 2 (b) the refusal of the Agency to allow the Applicant to view unredacted documents in File No. M4120-3/13-05726 of the Agency, even though no confidentiality order has been sought or made in that file.” [2] The Agency brought a motion to quash this application for judicial review pursuant to paragraph 52(a) of the Federal Courts Act. This paragraph provides that: 52. The Federal Court of Appeal may (a) quash proceedings in cases brought before it in which it has no jurisdiction or whenever those proceedings are not taken in good faith; … 52. La Cour d’appel fédérale peut : a) arrêter les procédures dans les causes qui ne sont pas de son ressort ou entachées de mauvaise foi; […] [3] The Agency does not allege that the notice of application for judicial review was not taken in good faith but rather that this Court does not have the jurisdiction to hear this application. The grounds upon which the Agency relies are the following: 1. Subparagraph 28(1)(k) of the Federal Courts Act provides that it has jurisdiction to hear application for judicial review made in respect of decisions of the Agency. 2. A “refusal” to disclose government information, containing personal information such as in the present case for example, is a “refusal” of the head of the institution. It is therefore not a decision of the Agency falling within the purview of section 28 of the Federal Courts Act. 521 Page: 3 3. The application for judicial review should have been filed with the Federal Court. 4. Any person who has been refused access to a record requested under the Access to Information Act or a part thereof may, if a complaint has been made to the Information Commissioner in respect of the refusal, apply to the Federal Court for a review of the matter within the time specified in the Access to Information Act. 5. There are three prerequisites that must be met before an access requestor may apply for Judicial Review: 1) The applicant must have been refused access to a record 2) The applicant must have complained to the Information Commissioner 3) The applicant must have received an investigation report by the Information Commissioner 6. The applicant could not apply for a judicial review because (1) the applicant's request was treated informally and there is therefore no “refusal”; (2) the applicant did not complain to the Information Commissioner before filing the within judicial review application; and (3) the applicant did not receive an investigation report by the Information Commissioner. 7. Even if the application for judicial review had been filed with the appropriate Court, it would have had no jurisdiction to obtain this application. 522 Page: 4 8. Such further and other grounds as counsel may advise and this Honourable Court may permit. [4] In Canada (Minister of National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250, [2013] F.C.J. No. 1155, Stratas J.A., writing on behalf of this Court, noted that: (3) Motions to strike notices of application for judicial review 47 The Court will strike a notice of application for judicial review only where it is "so clearly improper as to be bereft of any possibility of success": David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 at page 600 (C.A.). There must be a "show stopper" or a "knockout punch" - an obvious, fatal flaw striking at the root of this Court's power to entertain the application: Rahman v. Public Service Labour Relations Board, 2013 FCA 117 at paragraph 7; Donaldson v. Western Grain Storage By-Products, 2012 FCA 286 at paragraph 6; cf..Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959. 48 There are two justifications for such a high threshold. First, the Federal Courts' jurisdiction to strike a notice of application is founded not in the Rules but in the Courts' plenary jurisdiction to restrain the misuse or abuse of courts' processes: David Bull, supra at page 600; Canada (National Revenue) v. RBC Life Insurance Company, 2013 FCA 50. Second, applications for judicial review must be brought quickly and must proceed "without delay" and "in a summary way": Federal Courts Act, supra, subsection 18.1(2) and section 18.4. An unmeritorious motion - one that raises matters that should be advanced at the hearing on the merits - frustrates that objective. [5] In this case the Agency is relying on the authority provided in section 52 of the Federal Courts Act to strike the notice of application for judicial review. However, the comments of Stratas J. that an application for judicial review will only be struck if the application is “so clearly improper as to be bereft of any possibility of success" are equally applicable in this case. In David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588, this Court also 523 Page: 5 noted that a reason for such a high threshold is the difference between an action and an application for judicial review. As stated in paragraph 10: … An action involves, once the pleadings are filed, discovery of documents, examinations for discovery, and then trials with viva voce evidence. It is obviously important that parties not be put to the delay and expense involved in taking a matter to trial if it is "plain and obvious" (the test for striking out pleadings) that the pleading in question cannot amount to a cause of action or a defence to a cause of action… Further, the disposition of an application commenced by originating notice of motion does not involve discovery and trial, matters which can be avoided in actions by a decision to strike. In fact, the disposition of an originating notice proceeds in much the same way that an application to strike the notice of motion would proceed: on the basis of affidavit evidence and argument before a single judge of the Court. Thus, the direct and proper way to contest an originating notice of motion which the Agency thinks to be without merit is to appear and argue at the hearing of the motion itself… [6] Therefore, there is a high threshold for the Agency to succeed in this motion to quash the application for judicial review. [7] The first three grounds for quashing the application for judicial review identified by the Agency can be consolidated and summarized as a submission that there is no decision of the Agency and that this Court only has the jurisdiction under subparagraph 28(1)(k) of the Federal Courts Act to judicially review decisions of the Agency. [8] Subparagraph 28(1)(k) of the Federal Courts Act provides that: 28. (1) The Federal Court of Appeal has jurisdiction to hear and determine applications for judicial review made in respect of any of the following federal boards, commissions or other tribunals: … 28. (1) La Cour d’appel fédérale a compétence pour connaître des demandes de contrôle judiciaire visant les offices fédéraux suivants : […] 524 Page: 6 (k) the Canadian Transportation Agency established by the Canada Transportation Act; k) l’Office des transports du Canada constitué par la Loi sur les transports au Canada; [9] There is nothing in subsection 28(1) to suggest that an application for judicial review can only be made to this Court if there is a decision of the Agency. [10] In Air Canada v. Toronto Port Authority, 2011 FCA 347, [2011] F.C.J. No. 1725, Stratas J.A. stated that: 23 Although the Federal Court judge and the parties focused on whether a "decision" or "order" was present, I do not take them to be saying that there has to be a "decision" or an "order" before any sort of judicial review can be brought. That would be incorrect. 24 Subsection 18.1(1) of the Federal Courts Act provides that an application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by "the matter in respect of which relief is sought." A "matter" that can be subject of judicial review includes not only a "decision or order," but any matter in respect of which a remedy may be available under section 18 of the Federal Courts Act: Krause v. Canada, [1999] 2 F.C. 476 (C.A.). Subsection 18.1(3) sheds further light on this, referring to relief for an "act or thing," a failure, refusal or delay to do an "act or thing," a "decision," an "order" and a "proceeding." Finally, the rules that govern applications for judicial review apply to "applications for judicial review of administrative action," not just applications for judicial review of "decisions or orders": Rule 300 of the Federal Courts Rules. 25 As far as "decisions" or "orders" are concerned, the only requirement is that any application for judicial review of them must be made within 30 days after they were first communicated: subsection 18.1(2) of the Federal Courts Act. [11] Subsection 28(2) of the Federal Courts Act provides that section 18 to 18.5 (except subsection 18.4(2)) apply to any matter within the jurisdiction of this Court. Therefore, a decision is not necessarily required in order for this Court to have jurisdiction under section 28 of the Federal Courts Act. 525 Page: 7 [12] The other grounds that are submitted for quashing the notice of application are related to the Access to Information Act, R.S.C., 1985, c. A-1. It is acknowledged by both Dr. Lukács and the Agency that Dr. Lukács did not submit a request for information under this Act. Section 41 of that Act would only apply if the conditions as set out in that section were satisfied. Since he did not submit a request under that Act, the conditions of this section are not satisfied. [13] However, the argument of Dr. Lukács is that he has the right to the documents in question without having to submit a request for these under the Access to Information Act. The Agency did not refer to any provision of the Access to Information Act that provides that the only right to obtain information from the Agency is by submitting a request under that Act. [14] The issue on this motion is not whether Dr. Lukács will be successful in this argument but rather whether his application is “so clearly improper as to be bereft of any possibility of success”. I am not satisfied that the Agency has met this high threshold in this case. I agree with the comments of this Court in David Bull Laboratories (Canada) Inc. that “the direct and proper way to contest a [notice of application for judicial review] which the Agency thinks to be without merit is to appear and argue at the hearing of the [application] itself”. [15] The Agency’s motion to quash the notice of application for judicial review in this matter is dismissed, with costs, payable in any event of the cause. “Wyman W. Webb” J.A. 526 FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-218-14 STYLE OF CAUSE: DR. GABOR LUKACS v. CANADIAN TRANSPORTATION AGENCY MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: WEBB J.A. DATED: SEPTEMBER 19, 2014 WRITTEN REPRESENTATIONS BY: Self-represented FOR THE APPLICANT Odette Lalumière FOR THE RESPONDENT SOLICITORS OF RECORD: Self-represented FOR THE APPLICANT Legal Services Branch Canadian Transportation Agency FOR THE RESPONDENT 527 528 Indexed as: Nova Scotia (Attorney General) v. MacIntyre The Attorney General of Nova Scotia and Ernest Harold Grainger, appellants; and Linden MacIntyre, respondent; and The Attorney General of Canada, the Attorney General for Ontario, the Attorney General of Quebec, the Attorney General for New Brunswick, the Attorney General of British Columbia, the Attorney General for Saskatchewan and the Attorney General for Alberta, interveners; and Canadian Civil Liberties Association, intervener. [1982] 1 S.C.R. 175 File No.: 16045. Supreme Court of Canada 1981: February 3 / 1982: January 26. Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ. ON APPEAL FROM THE COURT OF APPEAL FOR NOVA SCOTIA Criminal law -- Search warrants -- Right to inspect search warrants and informations on which search warrants based -- Whether access restricted to "interested parties" or open to general public -- Whether right to inspect only on execution of search warrant or whether hearings dealing with search warrants open -- Criminal Code, R.S.C. 1970, c. C-34, ss. 443, 446. Respondent, an investigative journalist, was denied access to search warrants and supporting material by appellant Grainger, the Justice of the Peace who had issued them, because such material was not available for inspection by the general public. At trial, respondent was held entitled to a Page 1 529 declaration that search warrants after their execution, and the informations related to them in the control of the justice of the peace or court official, were court records available for examination by members of the general public. In dismissing an appeal, the Appeal Court declared that the public was entitled to inspect informations upon which search warrants were issued pursuant to s. 443 of the Criminal Code, and that any member of the public, including individuals about to be the subject of a search warrant, was entitled to be present in open court when the search warrants were issued. Held (Martland, Ritchie, Beetz and Estey JJ. dissenting): The appeal should be dismissed. Per Laskin C.J. and Dickson, McIntyre, Chouinard and Lamer JJ.: After a search warrant has been executed, and objects found during the search are brought before a justice, members of the public are entitled to inspect the warrant, and the information upon which it was issued. Curtailment of public accessibility is justified only where the need to protect other social values is of superordinate importance. In cases where a search warrant is issued but nothing is found, protection of the innocent is such an overriding social value. Furthermore, the public interest in the effective administration of justice must override public accessibility to the extent that the proceedings at which the warrant is issued can be conducted in camera. Otherwise a person whose property was to be searched could remove the goods. The need for confidentiality disappears, however, once the warrant has been executed. At this point the public as well as those who are directly interested have a right to inspect the warrant and the related information. Per Martland, Ritchie, Beetz and Estey JJ. (dissenting): The broad declaration of the Court of Appeal, for reasons given by Dickson J., cannot be sustained. Respondent cannot assert a right to examine the search warrants and related informations on the basis that the issuance of the search warrants was a judicial act in open court with a right for the public to be present. Proceedings before a justice under s. 443 are part and parcel of criminal investigative procedure and are not analogous to trial proceedings which are generally required to be conducted in open court. The opening to public inspection of the documents before the justice is not equivalent to the right of the public to attend and witness proceedings in court. Access to these documents should be restricted to persons who can show a direct and tangible interest in the documents. There is no general right to inspect search warrants and the informations relating thereto. Cases Cited Inland Revenue Commissioners v. Rossminster Ltd., [1980] 2 W.L.R. 1; R. v. Solloway Mills & Co., [1930] 3 D.L.R. 293; Realty Renovations Ltd. v. Attorney-General for Alberta et al. (1978), 44 C.C.C. (2d) 249; Southam Publishing Company v. Mack (1959-60), 2 Crim. L.Q. 119; Nixon v. Warner Communications, Inc. (1978), 98 S. Ct. 1306; R. v. Wright, 8 T.R. 293; Gazette Printing Co. v. Shallow (1909), 41 S.C.R. 339; Scott v. Scott, [1913] A.C. 417; McPherson v. McPherson, [1936] A.C. 177, referred to. Page 2 530 APPEAL from a judgment of the Nova Scotia Court of Appeal (1980), 110 D.L.R. (3d) 289, 52 C.C.C. (2d) 161, 38 N.S.R. (2d) 633, 69 A.P.R. 633, dismissing an appeal from a judgment of Richard J. Appeal dismissed, Martland, Ritchie, Beetz and Estey JJ. dissenting. Reinhold M. Endres and Mollie Gallagher, for the appellants. Robert Murrant and Gordon Proudfoot, for the respondent. J.A. Scollin, Q.C., and S.R. Fainstein, for the intervener the Attorney General of Canada. S. Casey Hill, for the intervener the Attorney General for Ontario. Ronald Schacter, for the intervener the Attorney General of Quebec. Eugene D. Westhaver, for the intervener the Attorney General for New Brunswick. E. Robert A. Edwards, for the intervener the Attorney General of British Columbia. Kenneth W. MacKay, for the intervener the Attorney General for Saskatchewan. Y. Roslak, Q.C., and Lloyd Nelson, for the intervener the Attorney General for Alberta. Alan D. Gold, for the intervener the Canadian Civil Liberties Association. Solicitors for the appellants: Reinhold M. Endres and Mollie Gallagher, Halifax. Solicitors for the respondent: Robert Murrant and Gordon Proudfoot, Dartmouth. The judgment of Laskin C.J. and Dickson, McIntyre, Chouinard and Lamer JJ. was delivered by DICKSON J.:-- The appellant, Ernest Harold Grainger, is Chief Clerk of the Provincial Magistrate's Court at Halifax and also a Justice of the Peace. In the latter capacity he had occasion to issue certain search warrants. The respondent, Linden MacIntyre, is a television journalist employed by the Canadian Broadcasting Corporation. At the material time Mr. MacIntyre was researching a story on political patronage and fund raising. Mr. MacIntyre asked Mr. Grainger to show him the search warrants and supporting material. Mr. Grainger refused, on the ground that such material was not available for inspection by the general public. Mr. MacIntyre commenced proceedings in the Supreme Court of Nova Scotia, Trial Division, for an order that search warrants and informations relating thereto, issued pursuant to s. 443 of the Criminal Code, R.S.C. 1970, c. C-34, or other related or similar statutes, are a matter of public record and may be inspected by a member of the public upon reasonable request. I Mr. Justice Richard of the Trial Division of the Supreme Court of Nova Scotia delivered reasons approving Mr. MacIntyre's application. He held that Mr. MacIntyre was entitled to a declaration to the effect that search warrants "which have been executed", and informations relating Page 3 531 thereto, which are in the control of the justice of the peace or a court official are court records available for examination by members of the general public. An appeal brought by the Attorney General of Nova Scotia and by Mr. Grainger to the Appeal Division of the Supreme Court of Nova Scotia was dismissed. The Appeal Division proceeded on much broader grounds than Richard J. The order dismissing the appeal contained a declaration "that a member of the public is entitled to inspect informations upon which search warrants have been issued pursuant to section 443 of the Criminal Code of Canada". The Court also declared that Mr. MacIntyre was entitled to be present in open court when the search warrants were issued. This right, the Appeal Division said, extended to any member of the public, including individuals who would be the subjects of the search warrants. This Court granted leave to appeal the judgment and order of the Appeal Division. The Attorney General of Canada and the Attorneys General of the Provinces of Ontario, Quebec, New Brunswick, British Columbia, Saskatchewan and Alberta intervened to support the appellant Attorney General of Nova Scotia. The Canadian Civil Liberties Association intervened in support of Mr. MacIntyre. Although Mr. MacIntyre happens to be a journalist employed by the C.B.C. he has throughout taken the position that his standing is no higher than that of any member of the general public. He claims no special status as a journalist. II A search warrant may be broadly defined as an order issued by a justice under statutory powers, authorizing a named person to enter a specified place to search for and seize specified property which will afford evidence of the actual or intended commission of a crime. A warrant may issue upon a sworn information and proof of reasonable grounds for its issuance. The property seized must be carried before the justice who issued the warrant to be dealt with by him according to law. Search warrants are part of the investigative pretrial process of the criminal law, often employed early in the investigation and before the identity of all of the suspects is known. Parliament, in furtherance of the public interest in effective investigation and prosecution of crime, and through the enactment of s. 443 of the Code, has legalized what would otherwise be an illegal entry of premises and illegal seizure of property. The issuance of a search warrant is a judicial act on the part of the justice, usually performed ex parte and in camera, by the very nature of the proceedings. The search warrant in recent years has become an increasingly important investigatory aid, as crime and criminals become increasingly sophisticated and the incidence of corporate white collar crime multiplies. The effectiveness of any search made pursuant to the issuance of a search warrant will depend much upon timing, upon the degree of confidentiality which attends the issuance of the Page 4 532 warrant and upon the element of surprise which attends the search. As is often the case in a free society there are at work two conflicting public interests. The one has to do with civil liberties and the protection of the individual from interference with the enjoyment of his property. There is a clear and important social value in avoidance of arbitrary searches and unlawful seizures. The other, competing, interest lies in the effective detection and proof of crime and the prompt apprehension and conviction of offenders. Public protection, afforded by efficient and effective law enforcement, is enhanced through the proper use of search warrants. In this balancing of interests, Parliament has made a clear policy choice. The public interest in the detection, investigation and prosecution of crimes has been permitted to dominate the individual interest. To the extent of its reach, s. 443 has been introduced as an aid in the administration of justice and enforcement of the provisions of the Criminal Code. III The Criminal Code gives little guidance on the question of accessibility to the general public of search warrants and the underlying informations. And there is little authority on the point. The appellant Attorney General of Nova Scotia relied upon Taylor's Treatise on the Law of Evidence (11th ed. 1920), upon a footnote to Order 63, Rule 4 of the English Rules of Court, and upon Inland Revenue Commissioners v. Rossminster Ltd., [1980] 2 W.L.R. 1. These authorities indicate that under English practice there is no general right to inspect and copy judicial records and documents. The right is only exercisable when some direct and tangible interest or proprietary right in the documents can be demonstrated. It does seem clear that an individual who is 'directly interested' in the warrant can inspect the information and the warrant after the warrant has been executed. The reasoning here is that an interested party has a right to apply to set aside or quash a search warrant based on a defective information (R. v. Solloway Mills & Co., [1930] 3 D.L.R. 293 (Alta. S.C.)). This right can only be exercised if the applicant is entitled to inspect the warrant and the information immediately after it has been executed. The point is discussed by Mr. Justice MacDonald of the Alberta Supreme Court in Realty Renovations Ltd. v. Attorney-General for Alberta et al. (1978), 44 C.C.C. (2d) 249 at pp. 253-54: Since the issue of a search warrant is a judicial act and not an administrative act, it appears to me to be fundamental that in order to exercise the right to question the validity of a search warrant, the interested party or his counsel must be able to inspect the search warrant and the information on which it is based. Although there is no appeal from the issue of a search warrant, a superior Court has the right by prerogative writ to review the act of the Justice of the Peace in issuing the warrant. In order to launch a proper application, the applicant should know the reasons or grounds for his application, which reasons or grounds are most likely to be found in the form of the information or warrant. Page 5 533 I am unable to conceive anything but a denial of Justice if the contents of the information and warrant, after the warrant is executed, are hidden until the police have completed the investigation or until the Crown prosecutor decides that access to the file containing the warrant is to be allowed. Such a restriction could effectively delay, if not prevent review of the judicial act of the Justice in the issue of the warrant. If a warrant is void then it should be set aside as soon as possible and the earlier the application to set it aside can be heard, the more the right of the individual is protected. The appellant, the Attorney General of Nova Scotia, does not contest the right of an 'interested party' to inspect search warrants and informations after execution. His contention is that Mr. MacIntyre, a member of the general public, not directly affected by issuance of the warrant, has no right of inspection. The question, therefore, is whether, in law, any distinction can be drawn, in respect of accessibility, between those persons who might be termed 'interested parties' and those members of the public who are unable to show any special interest in the proceedings. There would seem to be only two Canadian cases which have addressed the point. In (1959-60), 2 Crim. L.Q., 119, reference is made to an unreported decision of Greschuk J. in Southam Publishing Company v. Mack in Supreme Court Chambers in Calgary, Alberta. Mandamus was granted requiring a magistrate to permit a reporter of the Calgary Herald to inspect the information and complaints which were in his possession relating to cases the magistrate had dealt with on a particular date. In Realty Renovations Ltd. v. Attorney-General for Alberta, supra, MacDonald J. concluded his judgment with these words: I further declare that upon execution of the search warrant, the information in support and the warrant are matters of Court Record and are available for inspection on demand. It is only fair to observe, however, that in that case the person seeking access was an "interested party" and therefore the broad declaration, quoted above, strictly speaking went beyond what was required for the decision. American courts have recognized a general right to inspect and copy public records and documents, including judicial records and documents. Such common law right has been recognized, for example, in courts of the District of Columbia (Nixon v. Warner Communications, Inc. (1978), 98 S. Ct. 1306). In that case Mr. Justice Powell, delivering the opinion of the Supreme Court of the United States, observed at p. 1311: Both petitioner and respondents acknowledge the existence of a common-law right of access to judicial records, but they differ sharply over its scope and the circumstances warranting restrictions of it. An infrequent subject Page 6 534 of litigation, its contours have not been delineated with any precision. Later, at p. 1312, Mr. Justice Powell said: The interest necessary to support the issuance of a writ compelling access has been found, for example, in the citizen's desire to keep a watchful eye on the workings of public agencies, see, e.g., State ex rel. Colscott v. King, 154 Ind. 621, 621-627, 57 N.E. 535, 536-538 (1900); State ex rel. Ferry v. Williams, 41 N.J.L. 332, 336-339 (1879), and in a newspaper publisher's intention to publish information concerning the operation of government, see, e.g., State ex rel. Youmans v. Owens, 28 Wis.2d 672, 677, 137 N.W.2d 470, 472 (1965), modified on other grounds, 28 Wis.2d 685a, 139 N.W.2d 241 (1966). But see Burton v. Reynolds, 110 Mich. 354, 68 N.W. 217 (1896). By reason of the relatively few judicial decisions it is difficult, and probably unwise, to attempt any comprehensive definition of the right of access to judicial records or delineation of the factors to be taken into account in determining whether access is to be permitted. The question before us is limited to search warrants and informations. The response to that question, it seems to me, should be guided by several broad policy considerations, namely, respect for the privacy of the individual, protection of the administration of justice, implementation of the will of Parliament that a search warrant be an effective aid in the investigation of crime, and finally, a strong public policy in favour of "openness" in respect of judicial acts. The rationale of this last-mentioned consideration has been eloquently expressed by Bentham in these terms: 'In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.' 'Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.' The concern for accountability is not diminished by the fact that the search warrants might be issued by a justice in camera. On the contrary, this fact increases the policy argument in favour of accessibility. Initial secrecy surrounding the issuance of warrants may lead to abuse, and publicity is a strong deterrent to potential malversation. In short, what should be sought is maximum accountability and accessibility but not to the extent of harming the innocent or of impairing the efficiency of the search warrant as a weapon in society's never-ending fight against crime. IV The appellant, the Attorney General of Nova Scotia, says in effect that the search warrants are Page 7 535 none of Mr. MacIntyre's business. MacIntyre is not directly interested in the sense that his premises have been the object of a search. Why then should he be entitled to see them? There are two principal arguments advanced in support of the position of the appellant. The first might be termed the 'privacy' argument. It is submitted that the privacy rights of the individuals who have been the object of searches would be violated if persons like Mr. MacIntyre were permitted to inspect the warrants. It is argued that the warrants are issued merely on proof of 'reasonable grounds' to believe that there is evidence with respect to the commission of a criminal offence in a "building, receptacle or place". At this stage of the proceedings no criminal charge has been laid and there is no assurance that a charge ever will be laid. Moreover, search warrants are often issued to search the premises of a third party who is in no way privy to any wrongdoing, but is in possession of material necessary to the inquiry. Why, it is asked, submit these individuals to embarrassment and public suspicion through release of search warrants? The second, independent, submission of the appellant might be termed the 'administration of justice' argument. It is suggested that the effectiveness of the search warrant procedure depends to a large extent on the element of surprise. If the occupier of the premises were informed in advance of the warrant, he would dispose of the goods. Therefore, the public must be denied access to the warrants, otherwise the legislative purposes and intention of Parliament, embodied in s. 443 of the Criminal Code, would be frustrated. V Let me deal first with the 'privacy' argument. This is not the first occasion on which such an argument has been tested in the courts. Many times it has been urged that the 'privacy' of litigants requires that the public be excluded from court proceedings. It is now well established, however, that covertness is the exception and openness the rule. Public confidence in the integrity of the court system and understanding of the administration of justice are thereby fostered. As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings. The following comments of Laurence J. in R. v. Wright, 8 T.R. 293, are apposite and were cited with approval by Duff J. in Gazette Printing Co. v. Shallow (1909), 41 S.C.R. 339 at p. 359: Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings. The leading case is the decision of the House of Lords in Scott v. Scott, [1913] A.C. 417. In the later case of McPherson v. McPherson, [1936] A.C. 177, at p. 200, Lord Blanesburgh, delivering the judgment of the Privy Council, referred to "publicity" as the "authentic hall-mark of Page 8 536 judicial as distinct from administrative procedure". It is, of course, true that Scott v. Scott and McPherson v. McPherson were cases in which proceedings had reached the stage of trial whereas the issuance of a search warrant takes place at the pre-trial investigative stage. The cases mentioned, however, and many others which could be cited, establish the broad principle of "openness" in judicial proceedings, whatever their nature, and in the exercise of judicial powers. The same policy considerations upon which is predicated our reluctance to inhibit accessibility at the trial stage are still present and should be addressed at the pretrial stage. Parliament has seen fit, and properly so, considering the importance of the derogation from fundamental common law rights, to involve the judiciary in the issuance of search warrants and the disposition of the property seized, if any. I find it difficult to accept the view that a judicial act performed during a trial is open to public scrutiny but a judicial act performed at the pretrial stage remains shrouded in secrecy. The reported cases have not generally distinguished between judicial proceedings which are part of a trial and those which are not. Ex parte applications for injunctions, interlocutory proceedings, or preliminary inquiries are not trial proceedings, and yet the 'open court' rule applies in these cases. The authorities have held that subject to a few well-recognized exceptions, as in the case of infants, mentally disordered persons or secret processes, all judicial proceedings must be held in public. The editor of Halsbury's 4th Edition states the rule in these terms: In general, all cases, both civil and criminal, must be heard in open court, but in certain exceptional cases, where the administration of justice would be rendered impracticable by the presence of the public, the court may sit in camera [Vol. 10, para. 705, at p. 316]. At every stage the rule should be one of public accessibility and concomitant judicial accountability; all with a view to ensuring there is no abuse in the issue of search warrants, that once issued they are executed according to law, and finally that any evidence seized is dealt with according to law. A decision by the Crown not to prosecute, notwithstanding the finding of evidence appearing to establish the commission of a crime may, in some circumstances, raise issues of public importance. In my view, curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance. One of these is the protection of the innocent. Many search warrants are issued and executed, and nothing is found. In these circumstances, does the interest served by giving access to the public outweigh that served in protecting those persons whose premises have been searched and nothing has been found? Must they endure the stigmatization to name and reputation which would follow publication of the search? Protection of the innocent from unnecessary harm is a valid and important policy consideration. In my view that consideration overrides the public access interest in those cases where a search is made and nothing Page 9 537 is found. The public right to know must yield to the protection of the innocent. If the warrant is executed and something is seized, other considerations come to bear. VI That brings me to the second argument raised by the appellant. The point taken here is that the effective administration of justice would be frustrated if individuals were permitted to be present when the warrants were issued. Therefore, the proceeding must be conducted in camera, as an exception to the open court principle. I agree. The effective administration of justice does justify the exclusion of the public from the proceedings attending the actual issuance of the warrant. The Attorneys General have established, at least to my satisfaction, that if the application for the warrant were made in open court the search for the instrumentalities of crime would, at best, be severely hampered and, at worst, rendered entirely fruitless. In a process in which surprise and secrecy may play a decisive role the occupier of the premises to be searched would be alerted, before the execution of the warrant, with the probable consequence of destruction or removal of evidence. I agree with counsel for the Attorney General of Ontario that the presence in an open courtroom of members of the public, media personnel, and, potentially, contacts of suspected accused in respect of whom the search is to be made, would render the mechanism of a search warrant utterly useless. None of the counsel before us sought to sustain the position of the Appeal Division of the Supreme Court of Nova Scotia that the issue of the search warrant is a judicial act which should be performed in open court by a justice of the peace with the public present. The respondent Mr. MacIntyre stated in paragraph 5 of his factum: One must note that the Respondent never sought documentation relating to unexecuted search warrants nor did he ever request to be present during the decision making process... It appeared clear during argument that the act of issuing the search warrant is, in practice, rarely, if ever, performed in open court. Search warrants are issued in private at all hours of the day or night, in the chambers of the justice by day or in his home by night. Section 443(1) of the Code seems to recognize the possibility of exigent situations in stating that a justice may "at any time" issue a warrant. Although the rule is that of "open court" the rule admits of the exception referred to in Halsbury, namely, that in exceptional cases, where the administration of justice would be rendered impracticable by the presence of the public, the court may sit in camera. The issuance of a search warrant is such a case. In my opinion, however, the force of the 'administration of justice' argument abates once the warrant has been executed, i.e. after entry and search. There is thereafter a "diminished interest in confidentiality" as the purposes of the policy of secrecy are largely, if not entirely, accomplished. The need for continued concealment virtually disappears. The appellant concedes that at this point Page 10 538 individuals who are directly 'interested' in the warrant have a right to inspect it. To that extent at least it enters the public domain. The appellant must, however, in some manner, justify granting access to the individuals directly concerned, while denying access to the public in general. I can find no compelling reason for distinguishing between the occupier of the premises searched and the public. The curtailment of the traditionally uninhibited accessibility of the public to the working of the courts should be undertaken with the greatest reluctance. The 'administration of justice' argument is based on the fear that certain persons will destroy evidence and thus deprive the police of the fruits of their search. Yet the appellant agrees these very individuals (i.e. those 'directly interested') have a right to see the warrant, and the material upon which it is based, once it has been executed. The appellants do not argue for blanket confidentiality with respect to warrants. Logically, if those directly interested can see the warrant, a third party who has no interest in the case at all is not a threat to the administration of justice. By definition, he has no evidence that he can destroy. Concern for preserving evidence and for the effective administration of justice cannot justify excluding him. Undoubtedly every court has a supervisory and protecting power over its own records. Access can be denied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose. The presumption, however, is in favour of public access and the burden of contrary proof lies upon the person who would deny the exercise of the right. I am not unaware that the foregoing may seem a departure from English practice, as I understand it, but it is in my view more consonant with the openness of judicial proceedings which English case law would seem to espouse. VII I conclude that the administration of justice argument does justify an in camera proceeding at the time of issuance of the warrant but, once the warrant has been executed, exclusion thereafter of members of the public cannot normally be countenanced. The general rule of public access must prevail, save in respect of those whom I have referred to as innocent persons. I would dismiss the appeal and vary the declaration of the Appeal Division of the Supreme Court of Nova Scotia to read as follows: IT IS DECLARED that after a search warrant has been executed, and objects found as a result of the search are brought before a justice pursuant to s. 446 of the Criminal Code, a member of the public is entitled to inspect the warrant and the information upon which the warrant has been issued pursuant to s. 443 of the Code. There will be no costs in this Court. Page 11 539 The reasons of Martland, Ritchie, Beetz and Estey JJ. were delivered by MARTLAND J. (dissenting):-- This appeal is from a judgment of the Appeal Division of the Supreme Court of Nova Scotia. The facts which gave rise to the case are not in dispute. The appellant, Ernest Harold Grainger, is Chief Clerk of the Provincial Magistrate's Court at Halifax and is also a Justice of the Peace. The respondent is a television journalist employed by the Canadian Broadcasting Corporation who, at the material time, was researching a story on political patronage and fund raising. He asked the appellant, Grainger, to show him certain search warrants and supporting material and was refused on the ground that such material was not available for inspection by the general public. The respondent gave notice to the appellants of an intended application in the Supreme Court of Nova Scotia, Trial Division, for "an Order in the nature of mandamus and/or a declaratory judgment to the effect that the search warrants and Informations relating thereto issued pursuant to Section 443 of the Criminal Code of Canada or other related or similar statutes are a matter of public record and may be inspected by a member of the public upon reasonable request". The application was heard by Richard J. who ordered that the respondent "is entitled to a declaration to the effect that the Search Warrants and Informations relating thereto which have been executed upon and which are in the control of a Justice of the Peace or a Court Official are court records and are available for examination by members of the general public." It will be noted that this order was limited to search warrants which had been executed. The appellants appealed unsuccessfully to the Appeal Division. The judgment dismissing the appeal contained the following declaration: IT IS DECLARED that a member of the public is entitled to inspect informations upon which search warrants have been issued pursuant to section 443 of the Criminal Code of Canada. This declaration was broader in its scope than that made by Richard J. in that it was not limited to search warrants which had been executed. The basis for the Court's decision is set forth in the following paragraph of the reasons for judgment: In my opinion any member of the public does have a right to inspect informations upon which search warrants are based, pursuant to s. 443 of the Criminal Code, since the issue of the search warrant is a judicial act performed in open court by a justice of the peace. The public would be entitled to be present on that occasion and to hear the contents of the information presented to the justice when he is requested to exercise his discretion in the granting of the warrant. The information has become part of the record of the court as revealed at a public hearing and must be available for inspection by members of the Page 12 540 public. Subsection (1) of s. 443 of the Criminal Code provides: 443. (1) A justice who is satisfied by information upon oath in Form 1, that there is reasonable ground to believe that there is in a building, receptacle or place (a) anything upon or in respect of which any offence against this Act has been or is suspected to have been committed, (b) anything that there is reasonable ground to believe will afford evidence with respect to the commission of an offence against this Act, or (c) anything that there is reasonable ground to believe is intended to be used for the purpose of committing any offence against the person for which a person may be arrested without warrant, may at any time issue a warrant under his hand authorizing a person named therein or a peace officer to search the building, receptacle or place for any such thing, and to seize and carry it before the justice who issued the warrant or some other justice for the same territorial division to be dealt with by him according to law. Section 446 of the Criminal Code provides that anything seized under a search warrant issued pursuant to s. 443 and brought before a justice shall be detained by him or he may order that it be detained until the conclusion of any investigation or until required to be produced for the purpose of a preliminary inquiry or trial. Subsection (5) of s. 446 provides: 446. ... (5) Where anything is detained under subsection (1), a judge of a superior court of criminal jurisdiction or of a court of criminal jurisdiction may, on summary application on behalf of a person who has an interest in what is detained, after three clear days notice to the Attorney General, order that the person by or on whose behalf the application is made be permitted to examine anything so detained. Page 13 541 The appellants, by leave of this Court, have appealed from the judgments of the Appeal Division. The two issues stated by the appellants are as follows: (i) Are search warrants issued pursuant to Section 443 of the Criminal Code issued in open court and are they and the informations pertaining thereto consequently documents open for public inspection, (ii) Whether there is otherwise a general right to inspect search warrants and the informations pertaining thereto. With respect to the first issue, I am in agreement with my brother Dickson, for the reasons which he has given, that the broad declaration made by the Appeal Division cannot be sustained. That being so, the respondent cannot assert a right to examine the search warrants and the related informations on the basis that the issuance of the search warrants was a judicial act in open court with a right for the public to be present. That brings us to the second issue defined by the appellants as to whether there is a general right to inspect search warrants and the informations pertaining thereto. This was the real basis of the submission of the respondent who did not seek to sustain the position taken by the Appeal Division. His position is that search warrants issued under s. 443 and the informations pertaining thereto are court documents which are open to general public inspection. The respondent relies upon an ancient English statute enacted in 1372, 46 Edward III. An English translation of this Act, which was enacted in law French, appears in a note at the end of the judgment of the Court of King's Bench in Caddy v. Barlow (1827), 1 Man. & Ry. 275 at pp. 279-80. I will quote that part of the note which includes the statutory provision: It appears that originally all judicial records of the King's Courts were open to the public without restraint, and were preserved for that purpose. Lord Coke, in his preface to 3 Co. Rep. 3, speaking on this subject says, "these records, for that they contain great and hidden treasure, are faithfully and safely kept, (as they well deserve), in the king's treasury. And yet not so kept but that any subject may for his necessary use and benefit have access thereunto; which was the ancient law of England, and so is declared by an act of Parliament in 46 Edw. 3, in these words: Also the Commons pray, that, whereas records, and whatsoever is in the King's Court, ought of reason to remain there, for perpetual evidence and aid of all parties thereto, and of all those whom in any manner they reach, when they have need; and yet of late they refuse, in the Court of our said Lord, to make search or exemplification of any thing which can fall in evidence against the King, or in his disadvantage. May it please (you) to ordain by statute, that search and exemplification be made for all persons (fait as touts gentz) of whatever record touches them in any manner, as well as that which falls against the King as other persons. Le Roy le voet." Page 14 542 The respondent cites this legislation in support of the proposition that a member of the public has access to all judicial records. However, the provisions of the statute did not go that far. It referred to "whatever record touches them in any manner". (Emphasis added.) I take this as meaning that to obtain the benefit of the statute the person had to show that the document sought to be searched in some way affected his interests. This view is supported by the portion of the footnote which precedes the quotation of the statute. Lord Coke states that any subject may have access to the records "for his necessary use and benefit". The case of Caddy v. Barlow itself related to the admissibility, in an action for malicious prosecution, of a copy of an indictment against the plaintiff which had been granted to her brother, the co-accused. The respondent refers to the judgment of the Court of Appeal for Ontario in The Attorney-General v. Scully (1902), 4 O.L.R. 394, in which reference is made to Caddy v. Barlow and to the English statute. That case dealt with an application made to the clerk of the peace for a copy of the indictment in a criminal charge of theft against the applicant who had been acquitted. He obviously had an interest in obtaining the document. The Appeal Division in the present case which, as previously noted, based its decision to permit the examination of the search warrants and informations upon its conclusion that these documents were produced at a judicial hearing in open court, did deal with the assertion of a general right to examine court documents in the following passage in its reasons: In my opinion at common law courts have always exercised control over their process in open court and access to the records. Although the public have a right to any information they may gleam [sic] from attendance at a public hearing of a process in open court, and to those parts of the record that are part of the public presentation of the judicial proceeding in open court there have always been some parts of the court file that are available only to "persons interested" and this "interest" must be established to the satisfaction of the court. Parties to civil actions and the accused in criminal proceedings have always been held by the courts to be persons so interested. Other persons must establish their right to see particular documents before being entitled to do so. The Appeal Division cited in its reasons paragraphs 1492 and 1493 of Taylor on Evidence, 11th ed. (The same paragraphs appear with the same numbers in the 12th edition): 1492. It is highly questionable whether the records of inferior tribunals are open to the inspection of all persons without distinction; but it is clear that everyone has a right to inspect and take copies of the parts of the proceedings in which he is individually interested. The party, therefore, who wishes to examine Page 15 543 any particular record of one of those courts, should first apply to that court, showing that he has some interest in the document in question, and that he requires it for a proper purpose. If his application be refused, the Chancery, or the King's Bench Division of the High Court, upon affidavit of the fact, may send either for the record itself or an exemplification; or the latter court will, by mandamus, obtain for the applicant the inspection or copy required. Thus, where a person, after having been convicted by a magistrate under the game laws, had an action brought against him for the same offence, the Court of Queen's Bench held that he was entitled to a copy of the conviction; and the magistrate having refused to give him one, they granted a writ of certiorari, for the mere purpose of procuring a copy, and of thus enabling the defendant to defeat the action. So, where a party, who had been sued in a court of conscience and had been taken in execution, brought an action of trespass and false imprisonment, the judges granted him a rule to inspect so much of the book of the proceedings as related to the suit against himself. 1493. Indeed, it may be laid down as a general rule, that the King's Bench Division will enforce by mandamus the production of every document of a public nature, in which any one of his Majesty's subjects can prove himself to be interested. Every officer, therefore, appointed by law to keep records ought to deem himself a trustee for all interested parties, and allow them to inspect such documents as concern themselves,--without putting them to the expense and trouble of making a formal application for a mandamus. But the applicant must show that he has some direct and tangible interest in the documents sought to be inspected, and that the inspection is bona fide required on some special and public ground, or the court will not interfere in his favour; and therefore, if his object be merely to gratify a rational curiosity, or to obtain information on some general subject, or to ascertain facts which may be indirectly useful to him in some ulterior proceedings, he cannot claim inspection as a right capable of being enforced. The first edition of this work was published in 1848, and so these propositions may be taken as representing the author's views of the law of England on this subject. In Halsbury's Laws of England, 4th ed., vol. 1, para. 97, a similar statement of the law appears: The applicant's interest in the documents must be direct and tangible. Neither curiosity, even though rational, nor the ascertainment of facts which may be useful for furthering some ulterior object, constitutes a sufficient interest to bring an applicant within the rule on which the court acts in granting a Page 16 544 mandamus for the inspection of public documents. Although reasonable grounds must be shown for requiring inspection, it is not necessary to show as a ground for the application for a mandamus to inspect documents that a suit has been actually instituted. It will suffice to show that there is some particular matter in dispute and that the applicant is interested therein. It is quite clear that the respondent has no direct and tangible interest in the documents which he sought to examine. He wished to examine them to further an ulterior object, i.e. for the purpose of preparing a news story. Applying the rule applicable under English law, the appellant, Grainger, was entitled to refuse his request. It is suggested that a broader right might be recognized consonant with the openness of judicial proceedings. This suggestion requires a consideration of the nature of the proceedings provided for in s. 443. That section provides a means whereby persons engaged in the enforcement of criminal law may obtain leave, inter alia, to search buildings, receptacles or places and seize documents or other things which may afford evidence with respect to the commission of a criminal offence. A justice is empowered by the section to authorize this to be done. Before giving such authority, he must be satisfied by information on oath that there is reasonable ground for believing that there is in the building, receptacle or place anything in respect of which an offence has been committed or is suspected to have been committed; anything that there is reasonable ground to believe will afford evidence of the commission of a criminal offence; or anything that there is reasonable ground to believe is intended to be used for the commission of an offence against the person for which a person may be arrested without warrant. The function of the justice may be considered to be a judicial function, but might more properly be described as a function performed by a judicial officer, since no notice is required to anyone, there is no opposite party before him and, in fact, in the case of a search before proceedings are instituted, no opposite party exists. There is no requirement that the justice should perform his function in court. The justice does not adjudicate, nor does he make any order. His power is to give authority to do certain things which are a part of pretrial preparation by the Crown. No provision is made in either s. 443 or s. 446 for an examination by anyone of the documents on the basis of which the justice issued a search warrant. As the function of the justice is not adjudicative and is not performed in open court, cases dealing with the requirement of court proceedings being carried on in public, such as Scott v. Scott, [1913] A.C. 417, and McPherson v. McPherson, [1936] A.C. 177, are not, in my opinion, relevant to the issue before the Court. The documents which the respondent seeks to examine are not documents filed in court proceedings. They are the necessary requirements which enable the justice to grant permission for the Crown to pursue its investigation of possible crimes and to prepare for Page 17 545 criminal proceedings. If the documents in question in this appeal are not subject to public examination prior to the execution of the search warrants, I see no logical reason why they should become subject to such examination thereafter, at least until the case in respect of which the search has been made has come to trial. It is true that a search of those documents before the search warrant has been executed might frustrate the very purpose for which the warrant was issued by forewarning the person whose premises were to be searched. The element of surprise is essential to the proper enforcement of the criminal law. There are, however, additional and important reasons why such documents should not be made public which continue even after the warrant has been executed. The information upon oath on the basis of which a search warrant may be issued is in Form 1 contained in Part XXV of the Criminal Code. It requires a description of the offence in respect of which the search is to be made. The informant must state that he has reasonable grounds for believing that the things for which the search is to be made are in a particular place and must state the grounds for such belief. This document, which may be submitted to the justice before any charges have been laid, discloses the informant's statement that an offence has been committed or is intended to be committed. The disclosure of such information before trial could be prejudicial to the fair trial of the person suspected of having committed such crime. Publication of such information prior to trial is even more serious. In R. v. Fisher (1811), 2 Camp. 563, 170 E.R. 1253, a prosecution was instituted for criminal libel in consequence of the publication by the defendants of the preliminary examinations taken ex parte before a magistrate prior to the committal for trial of the plaintiff on a charge of assault with intent to rape. In his judgment, Lord Ellenborough said, at p. 570: If anything is more important than another in the administration of justice, it is that jurymen should come to the trial of those persons on whose guilt or innocence they are to decide, with minds pure and unprejudiced. Is it possible they should do so, after having read for weeks and months before, ex parte statements of the evidence against the accused, which the latter had no opportunity to disprove or to controvert? ... The publication of proceedings in courts of justice, where both sides are heard, and matters are finally determined, is salutary, and therefore it is permitted. The publication of these preliminary examinations has a tendency to pervert the public mind, and to disturb the course of justice; and it is therefore illegal. Inspection of the information and the search warrant would enable the person inspecting the documents to discover the identity of the informant. In certain types of cases this might well place the informant in jeopardy. It was this kind of risk which led to the recognition in law of the right of the police to protect from disclosure the identity of police informants. That right exists even where a Page 18 546 police officer is testifying at a trial. The same kind of risk arises in relation to persons who give information leading to the issuance of a search warrant. For the same reasons which justify the police in refusing to disclose the identity of an informer, public disclosure of documents from which the identity of the informant may be ascertained should not be compelled. In his reasons, my brother Dickson has referred to the fact that in recent years the search warrant has become an increasingly important investigatory aid as crime and criminals become increasingly sophisticated and has pointed out that the effectiveness of a search pursuant to a search warrant depends, inter alia, on the degree of confidentiality which attends the issuance of the warrant. To insure such confidentiality, it is essential that criminal organizations, such as those involved in the drug traffic, should be prevented, as far as possible, from obtaining the means to discover the identity of persons assisting the police. Apart from the protection of the identity of the person furnishing the information upon which the issuance of a search warrant is founded, it is undesirable, in the public interest, that those engaged in criminal activities should have available to them information which discloses the pattern of police activities in connection with searches. In Inland Revenue Commissioners v. Rossminster Ltd., [1980] 2 W.L.R. 1, the House of Lords considered the validity of a search warrant procured pursuant to an English statute, the Taxes Management Act 1970, 1970 (U.K.), c. 9. The warrant was obtained because of suspected tax frauds. When executed, the occupants of the premises were not told the offences alleged or the "reasonable ground" on which the judge issuing the warrant had acted. In his reasons for judgment, Lord Wilberforce said, at pp. 37-38: But, on the plain words of the enactment, the officers are entitled if they can persuade the board and the judge, to enter and search premises regardless of whom they belong to: a warrant which confers this power is strictly and exactly within the parliamentary authority, and the occupier has no answer to it. I accept that some information as regards the person(s) who are alleged to have committed an offence and possibly as to the approximate dates of the offences must almost certainly have been laid before the board and the judge. But the occupier has no right to be told of this at this stage, nor has he the right to be informed of the "reasonable grounds" of which the judge was satisfied. Both courts agree as to this: all this information is clearly protected by the public interest immunity which covers investigations into possible criminal offences. With reference to the police, Lord Reid stated this in these words: "The police are carrying on an unending war with criminals many of whom are today highly intelligent. So it is essential that there should be no disclosure of anything which might give any useful information to those who organise criminal activities. And it would generally be wrong to require disclosure in a civil case of anything which might be material in a Page 19 547 pending prosecution: but after a verdict has been given or it has been decided to take no proceedings there is not the same need for secrecy." (Conway v. Rimmer [1968] A.C. 910, at pp. 953-954.) The release to the public of the contents of informations and search warrants may also be harmful to a person whose premises are permitted to be searched and who may have no personal connection with the commission of the offence. The fact that his premises are the subject of a search warrant generates suspicion that he was in some way involved in the offence. Publication of the fact that such a warrant had been issued in respect of his premises would be highly prejudicial to him. For these reasons, I am not satisfied that there is any valid reason for departing from the rule as stated in Halsbury (supra) so as to afford to the general public the right to inspect documents forming part of the search warrant procedure under s. 443. In summary, my conclusion is that proceedings before a justice under s. 443 being part and parcel of criminal investigative procedure are not analogous to trial proceedings, which are generally required to be conducted in open court. The opening to public inspection of the documents before the justice is not equivalent to the right of the public to attend and witness proceedings in court. Access to these documents should be restricted, in accordance with the practice established in England, to persons who can show an interest in the documents which is direct and tangible. Clearly the respondent had no such interest. I would allow the appeal and set aside the judgments of the Court of Appeal and of Richard J. In accordance with the submission of the appellants, there should be no order as to costs. Appeal dismissed, Martland, Ritchie, Beetz and Estey JJ. dissenting. Page 20 548 Case Name: R. v. Canadian Broadcasting Corp. Between Canadian Broadcasting Corporation, Applicant (Appellant in Appeal), (Respondent in Cross-Appeal), and Her Majesty the Queen, Respondent (Respondent in Appeal), and Valentino Burnett, Karen Eves, Blaine Phibbs and Travis MacDonald, Respondents (Respondents in Appeal), and Waterloo Regional Police Service and The Office of the Chief Coroner, Respondents (Respondents in Appeal), and Correctional Service of Canada, Respondent (Respondent in Appeal), (Appellant in Cross-Appeal) [2010] O.J. No. 4615 2010 ONCA 726 221 C.R.R. (2d) 242 271 O.A.C. 7 102 O.R. (3d) 673 262 C.C.C. (3d) 455 327 D.L.R. (4th) 470 Dockets: C51613, C51617 Ontario Court of Appeal Toronto, Ontario J.I. Laskin, R.J. Sharpe and G.J. Epstein JJ.A. Heard: September 15, 2010. Judgment: November 1, 2010. (55 paras.) Page 1 549 Constitutional law -- Canadian Charter of Rights and Freedoms -- Fundamental freedoms -- Freedom of thought, belief, opinion and expression -- Freedom of expression -- Appeal by CBC from order imposing limitations on its right to access and copy preliminary inquiry exhibits for documentary allowed -- Cross-appeal by Correctional Service of Canada ("CSC") from order granting CBC any right to copy exhibits dismissed -- Absent finding of potential harm or injury to legally protected interest, there was nothing permitting a judge to impose his or her opinion about what did not need to be broadcast to general public -- Such an order would be inconsistent with constitutionally protected freedoms of expression and the press. Criminal law -- Preliminary inquiry -- Publication bans and confidentiality orders -- Appeal by CBC from order imposing limitations on its right to access and copy preliminary inquiry exhibits for documentary allowed -- Cross-appeal by Correctional Service of Canada ("CSC") from order granting CBC any right to copy exhibits dismissed -- Absent finding of potential harm or injury to legally protected interest, there was nothing permitting a judge to impose his or her opinion about what did not need to be broadcast to general public -- Such an order would be inconsistent with constitutionally protected freedoms of expression and the press. Criminal law -- Coroner's inquest or inquiry -- Procedure -- Appeal by CBC from order imposing limitations on its right to access and copy preliminary inquiry exhibits for documentary allowed -- Cross-appeal by Correctional Service of Canada ("CSC") from order granting CBC any right to copy exhibits dismissed -- Absent finding of potential harm or injury to legally protected interest, there was nothing permitting a judge to impose his or her opinion about what did not need to be broadcast to general public -- Such an order would be inconsistent with constitutionally protected freedoms of expression and the press. Media and Communications law -- Legislative framework -- Legislation -- Constitutional issues -- Canadian Charter of Rights and Freedoms -- Appeal by CBC from order imposing limitations on its right to access and copy preliminary inquiry exhibits for documentary allowed -- Cross-appeal by Correctional Service of Canada ("CSC") from order granting CBC any right to copy exhibits dismissed -- Absent finding of potential harm or injury to legally protected interest, there was nothing permitting a judge to impose his or her opinion about what did not need to be broadcast to general public -- Such an order would be inconsistent with constitutionally protected freedoms of expression and the press. Media and Communications law -- Broadcasting -- Television -- Canadian Broadcasting Corporation -- Content -- Constitutional issues -- Canadian Charter of Rights and Freedoms -- Freedom of expression -- Appeal by CBC from order imposing limitations on its right to access and copy preliminary inquiry exhibits for documentary allowed -- Cross-appeal by Correctional Service of Canada ("CSC") from order granting CBC any right to copy exhibits dismissed -- Absent finding of potential harm or injury to legally protected interest, there was nothing permitting a judge to impose his or her opinion about what did not need to be broadcast to general public -- Such an order would be inconsistent with constitutionally protected freedoms of expression and the press. Page 2 550 Appeal by CBC from an order imposing limitations on its right to access and copy preliminary inquiry exhibits. Cross-appeal by the Correctional Service of Canada ("CSC") from the order granting CBC any right to copy the exhibits. Ashley Smith, a 19-year-old from Moncton, New Brunswick, was serving a six-year sentence at the Grand Valley Institution for Women. On October 19, 2007, while under observation in an isolation cell, she strangled herself with a strip of cloth. Four correctional officers were charged with criminal negligence causing death. Those charges proceeded to a preliminary inquiry where certain exhibits were introduced into evidence. The exhibits included video recordings, one of which captured the actual circumstances of Ashley Smith's death. Part way through the preliminary inquiry, the Crown decided not to proceed with the charges and the four correctional officers were discharged. A coroner's warrant was subsequently issued for the seizure of all documents related to Ashley Smith's death, including the preliminary inquiry exhibits. CBC decided to produce an investigative documentary on Ashley Smith's life. CBC sought access to and copies of the preliminary inquiry exhibits. The preliminary inquiry judge refused CBC's request on the ground that he should not interfere with the process of the coroner's inquest. CBC sought certiorari to quash the preliminary inquiry judge's decision and an order pursuant to s. 24(1) of the Charter granting it access to and the right to copy the exhibits. The application judge found that the preliminary inquiry judge erred by refusing to deal with CBC's application on the merits, and that CBC was entitled to access the exhibits. However, he held that CBC was entitled to view and copy only those portions of the video evidence that were actually played at the preliminary inquiry, and that CBC was entitled to view but not copy the portion of the video that was played showing Ashley Smith's death. HELD: Appeal allowed and cross-appeal dismissed. The application judge erred by limiting CBC's right of access to only those portions of the exhibits that were played in open court. Absent some countervailing consideration, the open court principle and the media's right of access to judicial proceedings extended to anything that had been made part of the record, subject to any specific order to the contrary. The application judge did not give extensive reasons for refusing CBC the right to copy the portion of the video showing the circumstances of the death of Ashley Smith, and there was nothing in the record that could be invoked to justify the limitation imposed by the application judge. The application judge's perception that the image of a person dying was not something that needed to be broadcast to the general public was not based upon a finding of potential harm or injury to a recognized legal interest. Ashley Smith's mother, who was willing to have the circumstances of her daughter's death publicly considered, asserted no claim to privacy and agreed that CBC should have access. Absent any finding of potential harm or injury to a legally protected interest, there was nothing that permitted a judge to impose his or her opinion about what did not need to be broadcast to the general public. Such an order would be inconsistent with the constitutionally protected freedoms of expression and the press. Privacy interests and the protection of the innocent did not automatically trump the public's right to access. The right to access exhibits included the right to make copies. Statutes, Regulations and Rules Cited: Page 3 551 Canadian Charter of Rights and Freedoms, 1982, R.S.C. 1985, App. II, No. 44, Schedule B, s. 2(b), s. 24(1) Coroners Act, R.S.O. 1990, c. C.37, s. 31 Criminal Code, R.S.C. 1985, c. C-46, s. 539(1)(c) Appeal From: On appeal from the judgment of Justice G.E. Taylor of the Superior Court of Justice dated January 5, 2010, with reasons reported at (2010), 251 C.C.C. (3d) 414. Counsel: Patricia M. Latimer, for Canadian Broadcasting Corporation. Joel Robichaud and Nancy Noble, for Correctional Service of Canada. Lorenzo D. Policelli, for the Office of the Chief Coroner. Gary Melanson, for Waterloo Regional Police Service. The judgment of the Court was delivered by 1 R.J. SHARPE J.A.:-- This appeal involves consideration of the media's right to access and copy exhibits filed at a preliminary inquiry. In October 2007, Ashley Smith died in custody at the Grand Valley Institution for Women. Four correctional officers were charged with criminal negligence causing death. Those charges proceeded to a preliminary inquiry where certain exhibits were introduced into evidence. The exhibits included video recordings, one of which captured the actual circumstances of Ashley Smith's death. Part way through the preliminary inquiry, the Crown decided not to proceed with the charges and the four correctional officers were discharged. A coroner's warrant was subsequently issued for the seizure of all documents related to Ashley Smith's death including the preliminary inquiry exhibits. 2 The appellant Canadian Broadcasting Corporation ("CBC") decided to produce an investigative documentary on Ashley Smith's tragic life. CBC sought access to and copies of the preliminary inquiry exhibits. The preliminary inquiry judge refused CBC's request on the ground that he should not interfere with the process of the coroner's inquest. The application judge granted certiorari to review that order and held that CBC was entitled to access the exhibits, but he limited CBC's rights in certain respects. In particular, he held that CBC was entitled to view and copy only those portions Page 4 552 of the video evidence that were actually played at the preliminary inquiry, and that CBC was entitled to view but not copy the portion of the video that was played showing Ashley Smith's death. 3 CBC appeals the limitations imposed on its right to access and copy the exhibits. The Correctional Service of Canada ("CSC") cross-appeals arguing that the application judge erred by applying the Dagenais/Mentuck test and granting CBC any right to copy the exhibits. FACTS 4 Ashley Smith, a 19-year-old from Moncton, New Brunswick, was serving a six-year sentence at the Grand Valley Institution for Women in Kitchener. On October 19, 2007, while under observation in an isolation cell, she strangled herself with a strip of cloth. Four correctional officers employed by CSC were charged with criminal negligence causing death. Those charges proceeded to a preliminary inquiry in November 2008. A publication ban was imposed pursuant to s. 539 of the Criminal Code. The exhibits entered into evidence included photographs, documents and audio and video recordings relating to CSC's management of Ashley Smith. Although these recordings were marked as exhibits in their entirety, only portions were actually played in open court. The portion of one of the video recordings showing the actual circumstances of Ashley Smith's death was played in open court. 5 Several days into the preliminary inquiry, the Crown determined that there was no reasonable prospect of any of the accused being convicted and decided not to proceed with the charges. All four accused were discharged. As the preliminary inquiry had concluded, the publication ban expired pursuant to s. 539(1)(c) of the Criminal Code. The exhibits were returned to the investigating police force, the Waterloo Region Police Service ("WRPS"), and then given to the Office of the Chief Coroner ("OCC") pursuant to a coroner's warrant for the purpose of a coroner's inquest into Ashley Smith's death. 6 Several CSC employees were disciplined and grievances were filed. The estate and members of Ashley Smith's family commenced a civil action against CSC. PROCEEDINGS IN THE ONTARIO COURT OF JUSTICE AND SUPERIOR COURT OF JUSTICE 7 In July 2009, some seven months after the conclusion of the preliminary inquiry, CBC applied to the Ontario Court of Justice for access to the preliminary inquiry exhibits. CBC wanted copies of the exhibits to use in a proposed documentary on Ashley Smith's life for the series the fifth estate. The preliminary inquiry judge held that he retained jurisdiction over the exhibits but he refused to deal with CBC's request on the ground that he should not interfere with the process of the coroner's inquest. 8 CBC sought certiorari in the Superior Court of Justice to quash the decision of the preliminary inquiry judge and an order pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms Page 5 553 granting it access to and the right to copy the exhibits. The application judge found that the preliminary inquiry judge erred by refusing to deal with CBC's application on the merits, and then turned to CBC's application for a s. 24(1) Charter remedy. 9 The application judge held that the principles enunciated in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, and R. v. Mentuck, [2001] 3 S.C.R. 442, generally know as the "Dagenais/Mentuck" test, applied to CBC's request. The Dagenais/Mentuck test requires the party opposing media access to demonstrate that the order is necessary to prevent a serious risk to the proper administration of justice and that the salutary effects of the order sought outweigh the deleterious effects on the rights and interests of the parties and the public. 10 The application judge concluded that the respondents could not satisfy that onus and that CBC was entitled to access the preliminary inquiry exhibits subject to a number of exceptions and limitations. CBC takes no issue with the following exceptions and limitations imposed by the application judge: * the faces of any CSC officer or any other individual who did not consent to their faces being shown was to be digitally obscured; * the audio recordings were to be edited to remove the names of any corrections officers or other person who did not consent to their name being broadcast; * the copying and editing of the video and audio recordings was to be done so as to maintain the integrity of the original recordings; * the exhibits are to be used solely for use in a documentary by the fifth estate; * no copies are to be made of the exhibits other than for that use; * copies of the exhibits are not to be posted on any internet site except as part of a documentary by the fifth estate. 11 CBC appeals the following exceptions and limitations imposed by the application judge, namely, that it: * is entitled to access and copy only the portions of the video recordings that were played in open court; * is entitled to view but not copy the portion of the video showing Ashley Smith's death that was played in open court; * is entitled to view but not to copy the portion of one video recording showing four correctional officers entering the segregation unit; * where it is uncertain what portion of an exhibit was actually played in open court CBC was denied any access to that exhibit. 12 The application judge denied the OCC's request for an order delaying release of the exhibits until completion of the coroner's inquest. Page 6 554 13 On January 8, 2010, CBC aired the fifth estate documentary on the life of Ashley Smith which incorporated some video footage from the exhibits copied in accordance with the application judge's order. ISSUES 14 CBC appeals the restrictions imposed by the application judge on its right to access and copy the exhibits that I have identified in para. 11 of these reasons. The respondent CSC cross-appeals the order granting CBC the right to access and copy the exhibits. The respondent OCC takes the position that the application judge should have deferred CBC's request to the coroner presiding at the coroner's inquest into Ashley Smith's death. The respondent WRPS essentially supports the order of the application judge. 15 As the cross-appeal raises the fundamental issue of whether CBC was entitled to any access to the exhibits, I will deal with that issue first. I will then turn to the issues raised by CBC's appeal as to the limitations imposed on its right to access and copy the exhibits. 16 The issues may be summarized as follows: 1. Did the application judge err by applying the Dagenais/Mentuck test to CBC's request? 2. Did the application judge err by limiting CBC's right to access and copy the exhibits? 3. Did the application judge err by failing to give adequate consideration to the coordinate jurisdiction of the OCC? ANALYSIS 1. Did the application judge err by applying the Dagenais/Mentuck test to CBC's request? 17 CSC submits that the application judge erred by applying the Dagenais/Mentuck test to CBC's request to access and obtain copies of exhibits. CSC argues that Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671, governs such requests and required that CBC satisfy the onus of demonstrating why it was entitled to copies of the exhibits. CSC argues that the open court principle allows the public and the media to attend court and to listen to and observe the evidence as it is given, but does not stand for the proposition that the media is entitled to obtain copies of the exhibits and to publish or broadcast the copies. 18 Vickery involved a media request for access to an accused's alleged confession that had been excluded at a murder trial. The accused was acquitted and a journalist sought access to the alleged confession. By a 6-3 majority, the Supreme Court denied access, essentially on the ground that the acquitted accused's privacy interest and the need to protect the innocent outweighed the public's right of access. Page 7 555 19 Vickery preceded Dagenais and Mentuck. In Vickery, the Supreme Court of Canada expressly refused to consider the Charter as the journalist seeking access had not raised the Charter at first instance. As Dagenais and Mentuck make clear, the Charter has fundamentally altered the legal landscape in relation to court orders limiting freedom of the press in relation to court proceedings. Vickery plainly did not take into account that fundamental legal change. And, as the application judge rightly observed at para. 14, Vickery did not purport "to formulate a general rule for regulating access to audio and video recordings which were made court exhibits." 20 For the Supreme Court's post-Charter test that applies to all discretionary decisions limiting freedom of the press in relation to court proceedings, it is to Dagenais and Mentuck that one must turn. The Dagenais/Mentuck test, as restated in Toronto Star Newspapers Ltd. v. Ontario, [2005] 2 S.C.R. 188 at para. 26, reflects the importance of the open court principle and the rights of freedom of expression and freedom of the press in relation to judicial proceedings. Restrictions on the open court principle and freedom of the press in relation to judicial proceedings can only be ordered where the party seeking such a restriction establishes through convincing evidence that: (a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and (b) the salutary effects of the restriction outweigh the deleterious effects on the rights and interest of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. 21 While the Dagenais/Mentuck test was developed in the context of publication bans, the Supreme Court has stated that it applies any time s. 2(b) freedom of expression and freedom of the press rights are engaged in relation to judicial proceedings: "[T]he Dagenais/Mentuck test applies to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings": Toronto Star at para. 7 (emphasis in original). See also Vancouver Sun (Re), [2004] 2 S.C.R. 332 at paras. 30-31. 22 The open court principle, permitting public access to information about the courts, is deeply rooted in the Canadian system of justice. The strong public policy in favour of openness and of "maximum accountability and accessibility" in respect of judicial or quasi-judicial acts pre-dates the Charter: A.G. (Nova Scotia) v. MacIntyre, [1982] 1 S.C.R. 175 at p. 184. As Dickson J. stated at pp. 186-187: "At every stage the rule should be one of public accessibility and concomitant judicial accountability" and "curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance." 23 Now recognized as a fundamental aspect of the rights guaranteed by s. 2(b) of the Charter, the open court principle has taken on added force as "one of the hallmarks of a democratic society" that deserves constitutional protection: Canadian Broadcasting Corp. v. New Brunswick (A.G.), [1996] Page 8 556 3 S.C.R. 480 at para. 22. 24 The open court principle and the rights conferred by s. 2(b) of the Charter embrace not only the media's right to publish or broadcast information about court proceedings, but also the media's right to gather that information, and the rights of listeners to receive the information. "[T]he press must be guaranteed access to the courts in order to gather information" and "measures that prevent the media from gathering that information, and from disseminating it to the public, restrict the freedom of the press.": CBC v. New Brunswick at paras. 23-26. In Vancouver Sun (Re) at para. 25, the Supreme Court of Canada described the openness of the courts and judicial processes as being "necessary to maintain the independence and impartiality of courts", "integral to public confidence in the justice system" and "a principal component of the legitimacy of the judicial process". 25 I am unable to accept CSC's submission that the Dagenais/Mentuck test does not apply to media requests for access to exhibits. That argument has been properly and firmly rejected by two provincial appellate courts. In R. v. Fry (2010), 254 C.C.C. (3d) 394 at para. 65 (B.C.C.A.), a majority of the British Columbia Court of Appeal held that "the principles enunciated by the Supreme Court of Canada" in Dagenais and Mentuck "are fully applicable" to a media request for access to and the right to copy an exhibit after the conclusion of a trial. R. v. Hogg (2006), 208 Man. R. (2d) 244 (C.A.) is to the same effect. The Manitoba Court of Appeal applied the Dagenais/Mentuck test to assess the media's right to access a video recording of a statement made by an accused person that had been entered as an exhibit at a preliminary inquiry. 26 To paraphrase Fish J. in Toronto Star at para 30, CSC's argument that the Dagenais/Mentuck test does not apply to CBC's right to access and copy exhibits "is doomed to failure by more than two decades of unwavering decisions" from the Supreme Court and from provincial courts of appeal. 27 In my view, the authority of Vickery, post Dagenais and Mentuck, is limited. The case still stands as authority for the proposition that concern for the protection of the privacy and reputation of innocent persons are among the factors to be considered and weighed by the judge applying the Dagenais/Mentuck test, although under Dagenais/Mentuck, privacy interests and the protection of the innocent no longer automatically trump the public's right to access: Episcopal Corporation of the Diocese of Alexandria-Cornwall v. Cornwall Public Inquiry (2007), 278 D.L.R. (4th) 550 at para. 42 (Ont. C.A.). (i) Are the media's rights limited to attending court and observing and reporting on what transpires in the courtroom? 28 I do not agree with CSC's submission that the open court principle and the media's s. 2(b) Charter rights are limited to attending court and observing and reporting on what actually transpires in the courtroom. Even before the Charter, access to exhibits that were used to make a judicial determination, even ones introduced in the course of pre-trial proceedings and not at trial, was a well-recognized aspect of the open court principle: MacIntyre. That approach was endorsed in Page 9 557 Vancouver Sun at para. 27: [T]he principle of openness of judicial proceedings extends to the pretrial stage of judicial proceedings because the policy considerations upon which openness is predicated are the same as in the trial stage. ... [In MacIntyre,] Dickson J. found "it difficult to accept the view that a judicial act performed during a trial is open to public scrutiny but a judicial act performed at the pretrial stage remains shrouded in secrecy". 29 Likewise, in Toronto Star, the Supreme Court applied the Dangenais/Mentuck test to a Crown application to seal search warrant materials, thereby underlining that Dagenais/Mentuck applies to ensure the "openness of the judicial process", not only what actually transpires in open court. CSC's argument was implicitly rejected by this court in CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region) (2002), 59 O.R. (3d) 18, where the court held that the jurisdiction to order access to exhibits does not vanish simply because the exhibits were filed in open court. 30 In Lac d'Amiante du Québec Ltée v. 2858-0702 Québec Inc., [2001] 2 S.C.R. 743 at para. 72, the Supreme Court defined the media's right to access to court records and exhibits very broadly and in terms that are inconsistent with notion of a bare right to report on what actually transpires in open court: [O]nce the trial begins, and except for the limited number of cases held in camera or subject to a publication ban, the media will have broad access to the court records, exhibits and documents filed by the parties, as well as to the court sittings. They have a firm guarantee of access, to protect the public's right to information about the civil or criminal justice systems and freedom of the press and freedom of expression. [Emphasis added.] (ii) Does the right to access exhibits include the right to make copies? 31 In my view, absent the proof of some countervailing interest sufficient to satisfy the Dagenais/Mentuck test, the right to access exhibits includes the right to make copies. 32 While the Supreme Court of Canada appears not to have directly ruled on this point, there are dicta in at least two Supreme Court decisions supporting the proposition that the right to access exhibits includes the right to make copies. 33 In Named Person v. Vancouver Sun, [2007] 3 S.C.R. 253 at para. 33, the court reaffirmed the holding in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 at p. 1338, that the right to access exhibits includes the right to make copies as "s. 2(b) provides that the state must not interfere with an individual's ability to 'inspect and copy public records and documents, including judicial records and documents'." Page 10 558 34 We were referred to a long list of first instance decisions dealing with the right to make copies. While those decisions are not entirely consistent, the clear preponderance of authority applies the Dagenais/Mentuck test to such requests and allows for copies to be made. 35 Most, if not all, of the decisions cited by CSC in support of the argument that there is no right to copy exhibits are readily distinguishable. R. v. Pilarinos (2001), 158 C.C.C. (3d) 1 (B.C.S.C.), dealt with the British Columbia Supreme Court's policy banning cameras from the courtroom. Likewise, Société Radio-Canada c. Québec (A.G.), 2008 QCCA 1910, dealt with restrictions on holding interviews and recording images within the courthouse and the prohibition of broadcasts of court hearings. The debate over cameras in the courtroom and the right to broadcast court proceedings raises very different issues that do not concern us in this appeal. 36 Three cases cited by CSC dealt with the impact of allowing access on fair trial rights in ongoing criminal trials. In R. v. Sylvester (2007), 222 C.C.C. (3d) 106 (Ont. S.C.), the trial judge refused to allow a media request to copy an exhibit, but he did so because he was satisfied (at para. 86) that "to permit dissemination to occur ... would pose a real and substantial risk to [the accused's] right to a fair trial." R. v. Cairn-Duff (2008), 237 C.C.C. (3d) 181 (Alta. Q.B.), also dealt with a mid-trial request to copy an exhibit. While there are certainly some statements in that case that could be taken to support CSC's position, the trial judge also referred to the need to protect the accused's right to a fair trial and the failure of the media to give notice to all persons who might be affected by allowing copies to be made. 37 R. c. Dufour, 2008 CarswellQue 14365 (S.C.), leave to appeal granted, [2009] S.C.C.A. No. 84, also dealt with a mid-trial application for access to a video recording of a statement made by the accused. The trial judge denied that request on the ground that Rules of Practice of the Superior Court prohibit the broadcast of the proceedings of the court. 38 In my view, the cases cited by CSC do not establish anything approaching a general rule or practice that the media are not entitled to copies of exhibits filed in judicial proceedings. In the present case, there is no fair trial interest to protect, as all four accused were discharged at the preliminary inquiry, and no suggestion that the ban on cameras in the courtroom applies. 39 On the other side of the ledger, there is a very long line of cases that permit the media to make copies of exhibits. In R. v. Hogg, the media sought access to a video recording of an accused that had been introduced at a preliminary inquiry. The accused pleaded guilty at trial and received a conditional sentence. The Crown successfully appealed the sentence and a custodial term was imposed. At that point, the media sought access to the video recording of the statement and the right to make a copy for purposes of broadcast. The Manitoba Court of Appeal held at para. 47 that the media were "entitled to have access to and copy the videotape subject to any condition the court officers may impose to preserve the integrity of the exhibit." For other cases allowing the right to access and copy exhibits, see e.g.: R. v. Fry; R. v. Baltovich (2008), 232 C.C.C. (3d) 445 (Ont. S.C.); R. v. Côté (2007), 213 Man. R. (2d) 233 (Q.B.); R. v. Hilderman (2006), 395 A.R. 218 Page 11 559 (Q.B.); R. v. Black, 2006 BCSC 2040; R. v. Arenburg (1997), 38 O.T.C. 91 (Gen. Div.); R. v. Van Seters (1996), 31 O.R. (3d) 19 (Gen. Div.); R. v. Stark, [1995] B.C.J. No. 3064 (S.C.). (iii) Conclusion: application of the Dagenais/Mentuck test. 40 I conclude that the trial judge was correct in applying the Dagenais/Mentuck test to CBC's request for access to and copies of the exhibits at issue in this case. If CBC is to be denied access, or to have its access limited, it is for the party seeking to assert or uphold that denial to demonstrate through convincing evidence that the two-part Dagenais/Mentuck test has been satisfied. 41 Accordingly, I would dismiss the cross-appeal. 2. Did the application judge err by limiting CBCs right to access and copy the exhibits? (a) Is access and the right to copy limited to only those portions of the videos played in open court? 42 In my view, the application judge erred by limiting CBC's right of access to only those portions of the exhibits that were played in open court. While this result follows from much of what I have already said about the application of the Dagenais/Mentuck test, I add the following considerations. 43 When an exhibit is introduced as evidence to be used without restriction in a judicial proceeding, the entire exhibit becomes a part of the record in the case. While a party may choose to read or play only portions of the exhibit in open court, the trier of fact, whether judge or jury, is not limited to considering only those portions when deciding the case. A party who introduces an exhibit without restriction cannot limit the attention of the trier of fact to only portions of the exhibit that favour that party and that the party chooses to read out or play in open court. 44 As the entire exhibit is evidence to be used in deciding the case, I can see no principled reason to restrict access to only those portions played or read out in open court. When Dickson J. articulated and applied the open court principle to accord a journalist access to an affidavit filed in support of a search warrant application in MacIntrye, he was plainly confronted with material that had not been read out in open court. Yet he did not hesitate to order access. Absent some countervailing consideration sufficient to satisfy the Dagenais/Mentuck test, the open court principle and the media's right of access to judicial proceedings must extend to anything that has been made part of the record, subject to any specific order to the contrary. 45 Accordingly, it is my view that the application judge erred by limiting CBC's access to only those portions of the exhibits that were played in open court. (b) Did the application judge err by refusing CBC the right to copy the portion of the video exhibit showing the actual circumstances of the death of Ashley Smith? 46 The application judge did not give extensive reasons for refusing CBC the right to copy the Page 12 560 portion of the video showing the circumstances of the death of Ashley Smith. He stated at para. 49: I have decided that the CBC should be entitled to access to the video recording of Ashley Smith's death but not to have a copy of the recording. The gruesome image of a person dying is not something that I feel needs to be broadcast to the general public. By allowing the CBC access to the recording, will permit a verbal description to be broadcast, which in my view is sufficient. 47 We have viewed the contested portion of the video and it is certainly disturbing. However, I am not persuaded that there is anything in the record before us that can be invoked to justify the limitation imposed by the application judge, whether under the Dagenais/Mentuck test or under any other legal rule or principle. 48 The circumstances of this case are distinguishable from R. v. Bernardo, [1995] O.J. No. 1472 (Gen. Div.), leave to appeal refused, [1995] S.C.C.A. No. 250, further appeal dismissed for lack of jurisdiction, 122 C.C.C. (3d) 475 (Ont. C.A.), where the trial judge made an order relating to the treatment at trial of video tape evidence depicting in explicit detail the sexual assaults and rapes of four young girls, three of who were murder victims. LeSage A.C.J.O.C. applied the Dagenais test and, after a careful review of the evidence and the competing Charter arguments, concluded that the case for restricting access had been made out. He ruled that when the evidence was played, it should be visible only to the judge, the jury, counsel, the accused and to the extent necessary, court staff. No limit was imposed on the access to the audio portion of the exhibit. LeSage A.C.J.O.C. stated at para. 121 that the evidence established that "the harm that flows from the public display of this videotape evidence far exceeds any benefit that will flow from the public exposure of sexual assault and child pornography." LeSage A.C.J.O.C. found, again at para. 121, that the families of the victims would ... suffer tremendous psychological, emotional and mental injury if the evidence, as the Crown has described it in the opening statement, that is rape; anal and vaginal, the forced fellatio, cunnilingus, anilingus, forcing of the neck of a wine bottle in both the vagina and anus of one of these young women, is publicly displayed. 49 There are no comparable findings in this case. The application judge's perception that "[t]he gruesome image of a person dying is not something that I feel needs to be broadcast to the general public" is not based upon a finding of potential harm or injury to a recognized legal interest. Ashley Smith's mother, willing to have the circumstances of her daughter's death publicly considered, asserts no claim to privacy and agrees that CBC should have access and no other member of Ashley Smith's family has objected. 50 With respect, absent any finding of potential harm or injury to a legally protected interest, there is nothing in the law that permits a judge to impose his or her opinion about what does not need to be broadcast to the general public. That would be inconsistent with the constitutional Page 13 561 protection our legal order accords freedom of expression and freedom of the press. In this case, there is no finding of harm or injury capable of overriding a constitutional guarantee, and I would set aside that part of the application judge's order. (c) Other limitations 51 CBC also raises the issue of the propriety of the restriction the application judge imposed on copying a portion of exhibit 41 because it "is something about which the Correction Service of Canada has security concerns". The evidence in support of that contention is limited to a bald assertion and, having viewed the exhibit, it is very difficult to discern what the security concern would be. In my view, the evidence led to support this restriction on access falls well short of the "convincing evidence" required to satisfy the Dagenais/Mentuck test. Accordingly, I would set aside that part of the application judge's order. 3. Did the application judge err by failing to give adequate consideration to the coordinate jurisdiction of the OCC? 52 The OCC takes the position that the presiding coroner is in the best position to decide the impact of publication or broadcast of exhibits on a pending inquest and that the application judge failed to take that into account. The OCC submits that the issue of the right to access and copy the exhibits should be left to the coroner presiding at the inquest into the death of Ashley Smith. 53 I am unable to accept that submission. As specified by s. 31 of the Coroners Act, R.S.O. 1990, c. C.37, the coroner's jury will be prohibited from making any findings of legal responsibility in relation to Ashley Smith's death, but will be asked to make recommendations "directed to the avoidance of death in similar circumstances or respecting any other matter arising out of the inquest." There is nothing in this record to show that the order sought by CBC would interfere with the successful accomplishment of that mandate. In my view, the application judge quite properly concluded that there was no risk to the administration of justice arising from the pending coroner's inquest that would justify restricting CBC's access to the exhibits. 54 Nor, in the context of this case, does any possessory interest of the CSC, OCC or WRPS constitute a factor capable of precluding the court from exercising its jurisdiction over the exhibits and making an order in favour of CBC: see CTV Television Inc. at paras. 24-27. DISPOSITION 55 For these reasons, I would allow CBC's appeal and dismiss CSC's cross-appeal. The order of the application judge should be amended in accordance with these reasons. R.J. SHARPE J.A. J.I. LASKIN J.A.:-- I agree. G.J. EPSTEIN J.A.:-- I agree. Page 14 562 cp/e/ln/qllxr/qlhcs/qljyw/qlced Page 15 563 564 Case Name: Ruby v. Canada (Solicitor General) Clayton Charles Ruby, appellant; v. Solicitor General of Canada, respondent, and Privacy Commissioner of Canada and Robert Lavigne, interveners. [2002] S.C.J. No. 73 [2002] A.C.S. no 73 2002 SCC 75 2002 CSC 75 [2002] 4 S.C.R. 3 [2002] 4 R.C.S. 3 219 D.L.R. (4th) 385 295 N.R. 353 J.E. 2002-2096 49 Admin. L.R. (3d) 1 22 C.P.R. (4th) 289 7 C.R. (6th) 88 99 C.R.R. (2d) 324 118 A.C.W.S. (3d) 2 File No.: 28029. Supreme Court of Canada Page 1 565 Heard: April 24, 2002; Judgment: November 21, 2002. Present: McLachlin C.J. and L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ. (67 paras.) Appeal From: ON APPEAL FROM THE FEDERAL COURT OF APPEAL Catchwords: Constitutional law -- Charter of Rights -- Fundamental justice -- Security of the person -- Right to privacy -- Privacy Act providing for mandatory in camera hearing and ex parte representations where government denies applicant's request for access to personal information on grounds of national security or maintenance of foreign confidences -- Whether provisions infringe s. 7 of Canadian Charter of Rights and Freedoms -- Privacy Act, R.S.C. 1985, c. P-21, s. 51(2)(a), (3). Constitutional law -- Charter of Rights -- Freedom of expression -- Privacy Act providing for mandatory in camera hearing and ex parte representations where government denies applicant's request for access to personal information on grounds of national security or maintenance of foreign confidences -- Provisions infringing freedom of expression -- Whether infringement constitutional -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b) -- Privacy Act, R.S.C. 1985, c. P-21, s. 51(2)(a), (3). Privacy -- Access to personal information -- Exemptions -- Law enforcement and investigation -- Whether exemption in s. 22(1)(b) of Privacy Act limited to current investigations -- Whether notion of "injury" in s. 22(1)(b) to be extended to investigations in general -- Privacy Act, R.S.C. 1985, c. P-21, s. 22(1)(b). Privacy -- Access to personal information -- Review by Federal Court where access refused -- Privacy Act providing for mandatory in camera hearing and ex parte representations where government denies applicant's request for access to personal information on grounds of national security or maintenance of foreign confidences -- Whether provisions constitutional -- Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 7, 8 -- Privacy Act, R.S.C. 1985, c. P-21, s. 51(2)(a), (3). Costs -- Supreme Court of Canada -- Constitutional issues -- Constitutional issues raised by appellant serious, important and novel in context of access to information litigation -- Appropriate in this case to award costs of proceedings in Supreme Court and courts below to appellant even Page 2 566 though appeal only allowed in part -- Supreme Court Act, R.S.C. 1985, c. S-26, s. 47. Summary: Pursuant to s. 12(1)(a) of the Privacy Act, R made a request to be given access to personal information contained in an information bank maintained by the Canadian Security Intelligence Service ("CSIS"). CSIS would neither confirm nor deny the existence of the information but, if such information did exist, refused to disclose the information claiming the exemptions under ss. 19, 21, 22 and 26 of the Act. Section 19 provides that a government institution shall refuse to disclose personal information that was obtained in confidence from the government of a foreign state or an international organization, unless that government or organization agrees to the disclosure. Under s. 21, a government institution may refuse to disclose any personal information if such disclosure can reasonably be expected to be injurious to the conduct of international affairs or the defence of Canada. R made a complaint to the Privacy Commissioner and, after the results of the Commissioner's investigation were reported, filed an application in the Federal Court, Trial Division for a review of CSIS's refusal under s. 41 of the Act. Prior to the review hearing, R challenged the constitutionality of s. 51(2)(a) and (3) of the Act on the grounds that they violated ss. 2(b), 7, and 8 of the Canadian Charter of Rights and Freedoms. Under the impugned provisions, where a government institution has claimed the "foreign confidences" or the "national security" exemption, it is mandatory for a reviewing court to hold the entire hearing of a judicial review application in camera (s. 51(2)(a)) and to accept ex parte submissions at the request of the government institution refusing disclosure (s. 51(3)). The motions judge ruled that s. 51(2)(a) and (3) infringed s. 2(b) of the Charter but that the infringement was justifiable under s. 1. She also ruled that the impugned provisions did not violate s. 7 of the Charter. The Federal Court of Appeal affirmed the decision. R appealed to this Court and the respondent cross-appealed on an issue of interpretation of s. 22(1)(b) of the Act. Held: The appeal should be allowed in part. The cross-appeal should be allowed. Sections 51(2)(a) and 51(3) of the Privacy Act do not violate s. 7 of the Charter. Assuming that R has suffered a deprivation of his liberty or security interest in this case, the s. 51(3) requirement that a court accept ex parte submissions on request of the government institution refusing to disclose information is not, in the context of this case, contrary to the principles of fundamental justice. As a general rule, a fair hearing must include an opportunity for the parties to know the opposing party's case so that they may address evidence prejudicial to their case and bring evidence to prove their position. This general rule, however, tolerates certain exceptions as some situations require a measure of secrecy. Fairness can be met through other procedural safeguards such as subsequent disclosure, judicial review and rights of appeal. Here, the s. 7 challenge is very narrow and relates only to the lack of discretion of the court to decide whether a government institution that refuses to disclose information should be allowed to make ex parte submissions. Within the context of a valid statutory scheme that permits the government to refuse to disclose information when there is a legitimate exemption or to confirm or deny the existence of information, it can only follow that the Page 3 567 government must have the capacity to proceed ex parte. When a government institution claims the exemptions in ss. 19(1)(a) and (b) and 21, Parliament has seen fit, through the mandatory ex parte provision in s. 51(3), to assert the special sensitive nature of the information involved and has provided added protection and assurance against inadvertent disclosure. Only in these exceptional and limited circumstances will the procedural regime in s. 51 be activated. Recourse to the "national security" and "foreign confidences" exemptions is also subject to two independent levels of scrutiny: the Privacy Commissioner and the Federal Court. They both have access to the information that is being withheld in order to determine whether an exemption has been properly claimed. In enacting s. 51, Parliament attempted to balance the interests in accessing personal information held by government institutions with the state's significant and legitimate interest in national security and in maintaining foreign confidences. Given the statutory framework, the narrow basis of R's constitutional challenge and the significant and exceptional state and social interest in the protection of information involved, the mandatory ex parte and in camera provisions do not fall below the level of fairness required by s. 7 of the Charter. Lastly, a judicial summary of the evidence prepared by the reviewing court would not assist R for it could not provide any further detail without compromising the very integrity of the information. Indeed, the use of such a summary would increase the risk of inadvertent disclosure of the information or its source. R's arguments presented under s. 8 of the Charter were entirely subsumed under s. 7 and need not be addressed independently. To the extent that the in camera provision in s. 51(2)(a) excludes both R and the public from the proceedings, it is clear that the provision violates s. 2(b) of the Charter. The provision cannot be saved by s. 1. While the protection of information which could reasonably be expected to be injurious to Canada's national security and the preservation of Canada's supply of intelligence information from foreign sources are pressing and substantial objectives, s. 51(2)(a) does not meet the proportionality test. The provision is rationally connected to the objective, as in camera hearings reduce the risk of an inadvertent disclosure of sensitive information, but it fails on the question of minimal impairment. Section 51(2)(a) mandates that the hearing be held in camera and does not limit the in camera requirement to only those parts of a hearing that involve the merits of an exemption. The requirement that the entire hearing of a s. 41 application or appeal therefrom be heard in camera is too stringent. The appropriate remedy is to read down s. 51(2)(a) so that it applies only to the ex parte submissions mandated by s. 51(3). A reviewing court retains the discretion, pursuant to s. 46, to conduct the remainder of the hearing or any portion thereof in public, or in camera, or in camera and ex parte. The exemption in s. 22(1)(b) of the Privacy Act is not limited to current investigations or an identifiable prospective investigation. Since CSIS established a reasonable expectation of probable injury to investigations in general, it was justified in claiming the exemption based on s. 22(1)(b). Cases Cited Page 4 568 Applied: Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, 2002 SCC 53; referred to: Attorney General of Manitoba v. National Energy Board, [1994] 2 F.C. 502; Royal Bank v. W. Got & Associates Electric Ltd., [1994] 5 W.W.R. 337, aff'd [1997] 6 W.W.R. 715, aff'd [1999] 3 S.C.R. 408; R. v. Dyment, [1988] 2 S.C.R. 417; R. v. Beare, [1988] 2 S.C.R. 387; B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315; R. v. O'Connor, [1995] 4 S.C.R. 411; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711; R. v. Lyons, [1987] 2 S.C.R 309; Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425; R. v. Brown, [2002] 2 S.C.R. 185, 2002 SCC 32; R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14; Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; Ternette v. Canada (Solicitor General), [1992] 2 F.C. 75; Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430. Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 7, 8. Privacy Act, R.S.C. 1985, c. P-21, ss. 11, 12(1), 16(1), (2), 19-28, 19, 21, 22(1)(a), (b), (3), 26, 29 [am. 1992, c. 21, s. 37], 34(2), 41, 45, 46, 47, 49, 51, 52. Supreme Court Act, R.S.C. 1985, c. S-26, s. 47. Authors Cited Alberta Code of Professional Conduct. Calgary: Law Society of Alberta, 1995 (loose-leaf revised December 1999). de Smith, Stanley A. Judicial Review of Administrative Action, 5th ed. By Lord Woolf and Jeffrey Jowell. London: Sweet & Maxwell, 1995. Jones, David Phillip. Principles of Administrative Law, 3rd ed. By D. P. Jones and Anne S. de Villars. Scarborough, Ont.: Carswell, 1999. Wade, Sir William. Administrative Law, 8th ed. By Sir William Wade and Christopher Forsyth. New York: Oxford University Press, 2000. History and Disposition: APPEAL from a judgment of the Federal Court of Appeal, [2000] 3 F.C. 589, 187 D.L.R. (4th) 675, 256 N.R. 278, 6 C.P.R. (4th) 289, [2000] F.C.J. No. 779 (QL), upholding the decisions of Simpson J. (1994), 22 C.R.R. (2d) 324, 80 F.T.R. 81, [1994] F.C.J. No. 789 (QL), and [1996] 3 F.C. 134, 113 Page 5 569 F.T.R. 13, 136 D.L.R. (4th) 74, [1996] F.C.J. No. 748 (QL), affirming the constitutionality of s. 51 of the Privacy Act. Appeal allowed in part. CROSS-APPEAL from a judgment of the Federal Court of Appeal, [2000] 3 F.C. 589, 187 D.L.R. (4th) 675, 256 N.R. 278, 6 C.P.R. (4th) 289, [2000] F.C.J. No. 779 (QL), reversing the decision of MacKay J., [1998] 2 F.C. 351, 140 F.T.R. 42, 11 Admin. L.R. (3d) 132, [1997] F.C.J. No. 1750 (QL), regarding the interpretation of s. 22(1)(b) of the Privacy Act. Cross-appeal allowed. Counsel: Marlys A. Edwardh and Breese Davies, for the appellant. Barbara A. McIsaac, Q.C., Gregorios S. Tzemenakis and Christopher Rupar, for the respondent. Dougald E. Brown and Steven J. Welchner, for the intervener the Privacy Commissioner of Canada. Robert Lavigne, on his own behalf. The judgment of the Court was delivered by 1 ARBOUR J.:-- This appeal involves a constitutional challenge to a procedural section of the Privacy Act, R.S.C. 1985, c. P-21, that provides for mandatory in camera and ex parte proceedings where the government denies an applicant's request for access to personal information on the grounds of national security or the maintenance of foreign confidences. Specifically, the issue is whether ss. 51(2)(a) and 51(3) of the Act infringe or deny the appellant's rights and freedoms as guaranteed in ss. 2(b) and 7 of the Canadian Charter of Rights and Freedoms. 2 The constitutional challenge in this case is in fact very narrow. For the purposes of this appeal, the appellant does not challenge the right of a government institution to refuse to confirm or deny the existence of personal information. Nor does the appellant challenge the right of a government institution to refuse to disclose information on the basis of the exemptions enumerated in the Act. The appellant only attacks the procedural requirement under the Act that in certain narrow circumstances it is mandatory for a reviewing court to hold the entire hearing of a judicial review application in camera and to accept ex parte submissions at the request of the government institution refusing disclosure. To be clear, the appellant only challenges the mandatory nature of this provision and not the discretionary regime that applies for all other exemptions allowing a reviewing court to order a hearing in camera and accept ex parte submissions. 3 For reasons that I will expand upon below, I conclude that it is constitutional, within this statutory scheme, for the Privacy Act to require a reviewing court to accept submissions ex parte Page 6 570 from the government institution refusing disclosure. However, the in camera requirement found in s. 51(2)(a) is overly broad. The provision must be read down to require only the ex parte submissions to be held in camera, with the reviewing court's retaining the discretion to order the hearing or portions thereof in camera. I. Legislative Scheme 4 An understanding of the legislative framework of the Privacy Act is essential in order to understand this case. I have reproduced all the relevant provisions of the Act as an Appendix to these reasons. I will cite them as necessary in the course of my analysis. 5 First, a brief overview of the Act. Persons have a right to access personal information held about them by a government institution by virtue of s. 12 of the Act. A government institution may refuse to disclose personal information if able to claim one of the exemptions contained in ss. 19 through 28, inclusive. Section 19 is a mandatory exemption. A government institution shall refuse to disclose personal information requested under s. 12(1) that was obtained in confidence from the government of a foreign state or an international organization, unless that government or organization agrees to the disclosure or makes the information public. This exemption is commonly referred to as the "foreign confidences" exemption. Section 21 is a discretionary exemption. A government institution may refuse to disclose any personal information requested under s. 12(1) if such disclosure can reasonably be expected to be injurious to "the conduct of international affairs, the defence of Canada or any state allied or associated with Canada ... or the efforts of Canada toward detecting, preventing or suppressing subversive or hostile activities". This exemption is commonly referred to as the "national security" exemption. 6 The Act provides for two levels of independent review when a government institution refuses a request for access to personal information: the Privacy Commissioner and the Federal Court of Canada. The Privacy Commissioner has broad powers to carry out investigations. Upon completing an investigation, if the Privacy Commissioner finds that the complaint is well-founded, the Commissioner may recommend that the information be disclosed. The Commissioner does not, however, have the power to compel disclosure. Where the Privacy Commissioner has completed an investigation and a government institution continues to refuse to disclose the personal information, the individual who has been refused access may apply to the Federal Court for judicial review of the refusal. Pursuant to s. 46(1), the reviewing judge must take every reasonable precaution to avoid the disclosure of information that, in the end, may be found to be appropriately withheld. Accordingly, s. 46(1) gives the reviewing judge the discretion to receive representations ex parte and to conduct hearings in camera. 7 Section 51 changes the discretionary regime of s. 46 to a mandatory one in circumstances where a government institution has claimed an exemption under s. 19(1)(a) or (b) or s. 21 (the "foreign confidences" and the "national security" exemptions). When an exemption has been claimed under these provisions, s. 51(2)(a) mandates that the Federal Court hear the judicial review Page 7 571 application or an appeal therefrom in camera. Section 51(3) provides that on the request of the head of the government institution that has refused access to material on the basis of one of these provisions , the court must receive submissions from the government institution on an ex parte basis. II. Facts 8 The analysis and outcome of this case do not turn on the facts. However, the facts are useful in order to understand the history of this particular litigation and also as an example of access to information litigation in general. 9 On March 22, 1988 the appellant, Clayton Ruby, requested access to personal information held in personal information bank SIS/P-PU-010 ("Bank 010") maintained by the Canadian Security Intelligence Service ("CSIS"). The request was made pursuant to s. 12(1)(a) of the Act. The request to CSIS was only one of a number of access to information requests made by the appellant to the Royal Canadian Mounted Police ("RCMP") and the Department of External Affairs. Only CSIS named ss. 19 and 21 as exemptions and therefore the constitutional challenge to s. 51 involves only the request to CSIS. In the original application the respondent filed an affidavit of Robert Ian MacEwan, Director General, Counter Terrorism, CSIS. In order to describe the information contained in Bank 010, the affidavit reproduced the Personal Information Index published in 1987 in accordance with s. 11 of the Act: This bank contains information on individuals whose activities may, on reasonable grounds, be suspected of directly relating to espionage or sabotage that is against or is detrimental to the interests of Canada; or, activities directed toward or in support of such activity; foreign influenced activities within or relating to Canada that are detrimental to the interests of Canada, and are clandestine or deceptive, or involve a threat to any person; activities within or relating to Canada directed toward or in support of the threat or use of acts of serious violence against persons or property for the purpose of achieving a political objective within Canada or a foreign state; and, activities directed toward undermining by covert unlawful acts, or directed toward or intended ultimately to lead to the destruction or overthrow by violence of the constitutionally established system of government in Canada. This bank may also contain personal information that, in relation to the defence of Canada or to the conduct of the international affairs of Canada, pertains to the capabilities, intentions; or activities of any foreign state or group of foreign states; of any person other than a Canadian citizen or permanent resident; or, any corporation except one incorporated pursuant to the laws of Canada or of any province. Information is also held in respect to CSIS providing advice relating to the Citizenship or Immigration Acts. Page 8 572 10 Although the appellant's access request was with respect to personal information contained in Bank 010, CSIS took the liberty of also searching personal information bank SIS/P-PU-015 ("Bank 015"). Bank 015 is described in the Personal Information Index published in 1987 as containing information similar in nature to that in Bank 010 but of a less current and less sensitive nature. 11 CSIS responded to the appellant's request by letter dated August 12, 1988. With respect to Bank 010 CSIS would neither confirm nor deny the existence of information but if such information did exist CSIS refused to disclose the information claiming the exemptions in ss. 19, 21, 22, and 26 of the Act. With respect to information in Bank 015, CSIS disclosed 41 pages, portions of which were excised and claimed as exempt under ss. 21 and 26. CSIS disclosed a further 71 pages from a different source, or portions therefrom, claiming exemptions under s. 21 of the Act for the excised portions. 12 The appellant filed a complaint with the federal Privacy Commissioner pursuant to s. 29 of the Act regarding the refusal of CSIS to disclose information in Banks 010 and 015. Subsequent to the complaint the appellant was informed by CSIS that two more documents containing personal information about him existed in Bank 015 but were being claimed as exempt pursuant to ss. 19, 21, 22(1)(a)(iii), 22(1)(b) and 26. CSIS later amended the exemption to s. 22(1)(a)(ii) as opposed to s. 22(1)(a)(iii). As a result of the investigations by the Privacy Commissioner, CSIS disclosed an additional four pages, portions of which were excised claiming exemptions under ss. 21 and 26 of the Act. 13 The Acting Privacy Commissioner conducted an investigation and concluded that CSIS's refusal to neither confirm or deny the existence of information in Bank 010 was within the requirements of s. 16(2) of the Act and thus the complaint in regard to this refusal was not well-founded. In regards to the exemptions claimed in respect of information held in Bank 015, the Privacy Commissioner concluded that, with the exception of two documents, the undisclosed material was properly exempted under the Act. The Privacy Commissioner asked the Solicitor General to disclose two documents but the request was refused. The Commissioner informed the appellant that this was the first case in which a Minister had refused to accept a recommendation that information be disclosed. The documents were subsequently disclosed, with portions excised, after the judicial review proceeding was initiated. 14 Three years after the original access request, the appellant filed an application in the Federal Court, Trial Division under s. 41 of the Act for a review of CSIS's refusal to disclose the information. Section 41 provides that where a person has requested access to information, has been denied, and has filed a complaint with the Privacy Commissioner, he or she may then apply to the Federal Court for a judicial review of the refusal. 15 CSIS released additional documents to the appellant in July 1992. CSIS disclosed 211 pages, portions of which were excised claiming exemptions under ss. 19, 21, 22(1)(a), 22(1)(b) and 26 of the Act. CSIS maintains its position of non-disclosure with respect to all documents contained in Page 9 573 Bank 010 and the remainder of documents in Bank 015, including the excised portions therefrom, based on disclosure exemptions in ss. 19, 21, 22 and 26 of the Act. 16 Prior to the commencement of the judicial review hearing, the appellant filed notice of intent to challenge the s. 51 mandatory procedure provision under ss. 7, 8 and 2(b) of the Charter. 17 In the application, CSIS submitted a secret affidavit of an officer of CSIS, filed on order of the court. The affidavit informed the court whether personal information about the appellant existed in Bank 010 and if it did exist, the documents were provided with an explanation of the claimed exemptions for examination by the court. The undisclosed information that was contained in Bank 015 was also provided for examination by the court with an explanation of the exemption claimed. 18 Both the Trial Division and appellate level of the Federal Court ruled that s. 51(2)(a) and (3) violated s. 2(b) of the Charter but that they were saved by s. 1. Both levels of the Federal Court also found that the mandatory procedure in s. 51 did not violate s. 7, however they differed with respect to their characterizations of a right to privacy under s. 7. 19 The appellant appeals to this Court on the issues as to whether s. 7 of the Charter is engaged by s. 51(3), whether the violation of s. 2(b) is justifiable under s. 1 and costs. The Solicitor General cross-appeals on an issue of interpretation of s. 22(1)(b) of the Act and whether "injury" contemplated in that section is restricted to injury to current ongoing or identifiable prospective investigations . III. Judgments Below 20 The constitutional validity of s. 51 and the merits of the exemptions claimed by CSIS were determined separately in the Federal Court, Trial Division. The Court of Appeal consolidated the appeals on the constitutional question and the merits of the exemptions. A. Federal Court, Trial Division (1994), 80 F.T.R. 81 and [1996] 3 F.C. 134 21 Simpson J. ruled in the preliminary proceeding on the constitutional validity of s. 51. She held that any privacy rights protected by the Charter were not engaged by s. 51. She did, however, find that s. 51 was contrary to s. 2(b) of the Charter but that such violation was saved by s. 1. B. Federal Court of Appeal, [2000] 3 F.C. 589 22 The Federal Court of Appeal held that the mandatory in camera and ex parte provisions did not engage the liberty interest enshrined in s. 7. The court agreed with the decision of Simpson J. that the provisions are procedural in nature and do not interfere with the right of access granted by the Privacy Act. The Solicitor General did not appeal Simpson J.'s finding that the mandatory Page 10 574 provisions in s. 51 violate s. 2(b). The Court of Appeal held that the provisions were saved by s. 1. IV. Constitutional Questions 23 The following constitutional questions were stated by Order of this Court on June 21, 2001: 1. Do ss. 51(2)(a) and 51(3) of the Privacy Act, R.S.C. 1985, c. P-21, as amended, infringe or deny the appellant's rights or freedoms guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms? 2. If the answer to Question 1 is in the affirmative, are ss. 51(2)(a) and 51(3) of the Privacy Act reasonable limits, prescribed by law, that can be demonstrably justified in a free and democratic society, pursuant to s. 1 of the Canadian Charter of Rights and Freedoms? 3. Does s. 51(3) of the Privacy Act infringe or deny the appellant's rights and freedoms guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms? 4. If the answer to Question 3 is in the affirmative, is s. 51(3) of the Privacy Act a reasonable limit, prescribed by law, that can be demonstrably justified in a free and democratic society, pursuant to s. 1 of the Canadian Charter of Rights and Freedoms? V. Analysis 24 It is important to clarify at the outset the meaning and effect of the mandatory in camera and ex parte provisions. Section 51 reads: 51. (1) Any application under section 41 or 42 relating to personal information that the head of a government institution has refused to disclose by reason of paragraph 19(1)(a) or (b) or section 21 ... shall be heard and determined by the Associate Chief Justice of the Federal Court or by such other judge of the Court as the Associate Chief Justice may designate to hear the applications. (2) An application referred to in subsection (1) or an appeal brought in respect of such application shall (a) be heard in camera; and (b) on the request of the head of the government institution concerned, be heard and determined in the National Capital Region described in the Page 11 575 schedule to the National Capital Act. (3) During the hearing of an application referred to in subsection (1) or an appeal brought in respect of such application, the head of the government institution concerned shall, on the request of the head of the institution, be given the opportunity to make representations ex parte. Section 51 requires a court, in an application for judicial review brought under s. 41 of the Act, to hear the application or any appeal therefrom in camera. Simpson J., in her s.1 analysis, noted that there was a judicial practice of reading down s. 51 as requiring only those portions of the hearing in which the ex parte submissions are received to be in camera. I will discuss this practice later in my reasons. Suffice it to say, at this point, however, that such an interpretation cannot be reasonably supported on a plain reading of the Act. The provision is clear that the entire hearing and any appeal therefrom, are to be held in camera. 25 Ex parte, in a legal sense, means a proceeding, or a procedural step, that is taken or granted at the instance of and for the benefit of one party only, without notice to or argument by any adverse party: Attorney General of Manitoba v. National Energy Board, [1974] 2 F.C. 502 (T.D.). The circumstances in which a court will accept submissions ex parte are exceptional and limited to those situations in which the delay associated with notice would result in harm or where there is a fear that the other party will act improperly or irrevocably if notice were given. For instance, temporary injunctions are often issued ex parte in order to preserve the status quo for a short period of time before both parties can be heard (to prevent the demolition of a building, for example). 26 Ex parte proceedings need not be held in camera. Indeed, ex parte submissions are often made in open court (in interlocutory matters, for example). In fact, an order will still be considered ex parte where the other party happens to be present at the hearing but does not make submissions (for instance, because of insufficient notice): Royal Bank v. W. Got & Associates Electric Ltd., [1994] 5 W.W.R. 337 (Alta. Q.B.), at para. 10, aff'd [1997] 6 W.W.R. 715 (Alta. C.A.), aff'd (without reference to this point) [1999] 3 S.C.R. 408. On the other hand, other ex parte proceedings are, by necessity, not held in public. An application for a wiretap authorization, for instance, must be made both ex parte and in camera. 27 In all cases where a party is before the court on an ex parte basis, the party is under a duty of utmost good faith in the representations that it makes to the court. The evidence presented must be complete and thorough and no relevant information adverse to the interest of that party may be withheld: Royal Bank, supra, at para. 11. Virtually all codes of professional conduct impose such an ethical obligation on lawyers. See for example the Alberta Code of Professional Conduct, c. 10, r. 8. 28 Section 51 of the Privacy Act contemplates the following: where a "foreign confidence" or "national security" exemption is claimed by a government institution, the hearing must be held in camera (s. 51(2)(a)). This means that the hearing is not open to the public but the applicant is not Page 12 576 excluded and may participate. In the course of that in camera hearing, the government institution may request that the applicant be excluded and, in such a case, the court must hear the government ex parte (s. 51(3)) (and, of course, still in camera). Therefore it is only through the operation of ss. 51(2)(a) and 51(3) together that the appellant is excluded from the proceeding. 29 Properly understood, the constitutional challenge on the basis of s. 7 relates essentially to the appellant's exclusion from the hearing as a result of the operation of ss. 51(2)(a) and 51(3) together, resulting in portions of the government's submissions being ex parte and in camera and therefore unavailable to the appellant. It is the exclusion of the appellant from portions of the government's submissions that is alleged to be contrary to the principles of fundamental justice. As for the s. 2(b) challenge, it relates to the statutory requirement that the entire hearing be in camera, inclusive of the ex parte submissions. It is the mandatory exclusion of the public and the media, (of which the appellant is a member) from the proceedings that the appellant alleges violates s. 2(b) of the Charter. A. Section 7 30 In addition to his claim under s. 7, the appellant also argued a violation of s. 8 of the Charter. The arguments presented under s. 8 are entirely subsumed under s. 7 and need not be addressed independently. 31 The appellant argues that the right to security of the person protected by s. 7 of the Charter protects the right to privacy in a biographical core of information to which an individual would wish to control access. This biographical core of information includes information which tends to reveal intimate details of lifestyle and individual personal or political choices. This right to privacy is said to include a concomitant right of access to personal information in the hands of government in order that an individual may know what information the government possesses. This, in turn, will ensure that government action in the collection of personal information can be scrutinized and inaccuracies in the information collected may be corrected. Any limit on this right to access must accord with the principles of fundamental justice. Following this argument, the appellant submits that the procedural provisions in s. 51 directly affect an individual's ability to "control such information in the hands of the state" and for that reason the procedural unfairness created by s. 51 violates s. 7 of the Charter. 32 The Federal Court of Appeal, citing R. v. Dyment, [1988] 2 S.C.R. 417, R. v. Beare, [1988] 2 S.C.R. 387, B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315, and R. v. O'Connor, [1995] 4 S.C.R. 411, observed that there is an emerging view that the liberty interest in s. 7 of the Charter protects an individual's right to privacy. They accepted the appellant's view that in order for the right to informational privacy to have any substantive meaning it must be concerned both with the acquisition and the subsequent use of personal information. Recognizing that one has a legitimate interest in ensuring that information has been properly collected and is being used for the proper purpose, the Court of Appeal held that the right to privacy includes the Page 13 577 ability to control the dissemination of personal information obtained by the government. To this end the court stated (at para. 169): In a case such as this where an individual may not be fully aware of the information collected and retained by the government, the ability to control the dissemination of personal information is dependent on a corollary right of access, if only to verify the information's accuracy. In short a reasonable expectation of access is a corollary to the reasonable expectation of privacy. 33 In my view, it is unnecessary to the disposition of this case to decide whether a right to privacy comprising a corollary right of access to personal information triggers the application of s. 7 of the Charter. Assuming, for the purposes of this analysis, that the appellant has suffered a deprivation of his liberty or security of the person interest, that deprivation is not contrary to the principles of fundamental justice. In order to determine whether an alleged deprivation of the right to life, liberty and security of the person is or is not in accordance with the principles of fundamental justice, it is necessary to appreciate the exact nature of the deprivation. Here, without deciding if there is a deprivation of a liberty or security interest, we can take the alleged deprivation to be as stated by the appellant: he claims that he has a right to access personal information already in the hands of government in order to correct inaccurate information and ensure that the information was collected lawfully. He then asserts that this component of his liberty and security interest is infringed by the mandatory secrecy of some of the government's submissions. 34 The appellant stresses that it is the mandatory nature of s. 51(3) that does not comply with the principles of fundamental justice. Because the provisions are mandatory, the court does not have the discretion to control what information should be provided to an applicant in order to enable him or her to challenge effectively the government's refusal to disclose information and the legitimacy of the exemption claimed. The appellant submits that a provision permitting ex parte and in camera proceedings must contain a judicial discretion to provide the applicant with sufficient information in order to answer the government's case effectively. This could be accomplished, the appellant submits, through the use of judicial summaries similar to those that are used in wiretap proceedings. 35 I agree with the view expressed by the Federal Court of Appeal that there is a disharmony between the appellant's proposed solution of judicial summaries and the alleged Charter violation brought about by the mandatory ex parte submissions at the request of a government institution . Section 46 of the Act provides a court with the authority to receive representations ex parte and conduct hearings in camera in order to guard against the inadvertent disclosure of information the government institution may have legitimately refused to confirm exists, as well as information that may be found to be properly exempted: 46. (1) In any proceedings before the Court arising from an application under section 41, 42 or 43, the Court shall take every reasonable precaution, including, when appropriate, receiving representations ex parte and conducting Page 14 578 hearings in camera, to avoid the disclosure by the Court or any person of (a) any information or other material that the head of a government institution would be authorized to refuse to disclose if it were requested under subsection 12(1) or contained in a record requested under the Access to Information Act; or (b) any information as to whether personal information exists where the head of a government institution, in refusing to disclose the personal information under this Act, does not indicate whether it exists. (2) The Court may disclose to the appropriate authority information relating to the commission of an offence against any law of Canada or a province on the part of any officer or employee of a government institution, if in the opinion of the Court there is evidence thereof. When a court exercises its discretion under s. 46 to receive evidence ex parte, either through a confidential affidavit or otherwise, there is no obligation to provide the applicant with a judicial summary. The Privacy Act does not impose an obligation on a court to prepare a judicial summary of evidence in any circumstance. The appellant has not challenged the discretionary power of a court to accept ex parte submissions under s. 46. The alternative to the mandatory in camera and ex parte provisions in s. 51 is therefore the discretion conferred on the court under s. 46 to order proceedings in camera or accept submissions ex parte. 36 In any event, I fail to see how a judicial summary of the evidence would assist the appellant. Where the institution body has refused to confirm or deny the existence of information a judicial summary is simply inappropriate. Where the existence of information is known to the appellant, the use of judicial summaries would not appreciably increase the amount of information already available to the appellant through the public affidavits. The public affidavits outline the purpose of the exemption, its importance and the risk associated with disclosure. The secret affidavit and the ex parte submissions directly involve the information exempted, if any exists. I accept the respondent's claim that a judicial summary could not provide any further detail without compromising the very integrity of the information. 37 Furthermore, the use of judicial summaries would increase the risk of inadvertent disclosure of the information or its source. Parliament has seen fit, in those cases involving national security or foreign confidences, to provide for the maximum protection against disclosure. For a court to embark upon preparing summaries of confidential information would imperil confidentiality without adding much to the transparency requested by the appellant. Page 15 579 38 It remains to determine whether the requirement in s. 51(3) that a court accept ex parte submissions on request of the government institution refusing to disclose information is contrary to the principles of fundamental justice. As I have already noted, the circumstances in which a court will accept ex parte submissions are exceptional . The circumstances in which a court will be obliged to hear ex parte submissions at the request of one party are even more exceptional . The question is whether, in the context of this case, such a provision is consistent with the principles of fundamental justice. I believe that it is. 39 The principles of fundamental justice are informed in part by the rules of natural justice and the concept of procedural fairness. What is fair in a particular case will depend on the context of the case: Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 21; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 743. As stated by La Forest J. for the majority in R. v. Lyons, [1987] 2 S.C.R. 309, at p. 361, and quoted with approval in Chiarelli, supra, at p. 743: It is clear that, at a minimum, the requirements of fundamental justice embrace the requirements of procedural fairness (see, e.g., the comments to this effect of Wilson J. in Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 212-13). It is also clear that the requirements of fundamental justice are not immutable; rather, they vary according to the context in which they are invoked. Thus, certain procedural protections might be constitutionally mandated in one context but not in another. In assessing whether a procedure accords with the principles of fundamental justice, it may be necessary to balance the competing interests of the state and individual: Chiarelli, supra, at p. 744, citing Thomson Newspapers Ltd. v. Canada (Director of Investigation and Research, Restrictive Trade Practices Commission), [1990] 1 S.C.R. 425, at p. 539. It is also necessary to consider the statutory framework within which natural justice is to operate. The statutory scheme may necessarily imply a limit on disclosure. "The extent of the disclosure required by natural justice may have to be weighed against the prejudice to the scheme of the Act which disclosure may involve": W. Wade and C. Forsyth, Administrative Law (8th ed. 2000), at p. 509. See also Baker, supra, at para. 24. 40 As a general rule, a fair hearing must include an opportunity for the parties to know the opposing party's case so that they may address evidence prejudicial to their case and bring evidence to prove their position: see generally Wade and Forsyth, supra, at p. 506; S. A. de Smith, J. Jowell and H. Woolf, Judicial Review of Administrative Action (5th ed. 1995), at p. 441; D. P. Jones and A. S. de Villars, Principles of Administrative Law (3rd ed. 1999), at p. 261. The exclusion of the appellant from portions of the government's submissions is an exceptional departure from this general rule. The appellant operates in an informational deficit when trying to challenge the legitimacy of the exemptions claimed by the government. However, the general rule does tolerate Page 16 580 certain exceptions. As indicated earlier, some situations require a measure of secrecy, such as wiretap and search warrant applications. In such circumstances, fairness is met through other procedural safeguards such as subsequent disclosure, judicial review and rights of appeal. In other cases, for instance where a privilege is successfully asserted, the content of the disputed information may never be revealed (see R. v. Brown, [2002] 2 S.C.R. 185, 2002 SCC 32; R. v. McClure, [2001] 1 S.C.R. 445, 2001 SCC 14). 41 The context of this case is therefore critical. As I indicated earlier, the constitutional challenge is very narrow. The s. 7 challenge relates only to the lack of discretion of the court to decide whether a government institution which refuses to disclose information should be allowed to make ex parte submissions. Section 51(3) requires a court to hear submissions ex parte at the request of a government institution. The appellant is not challenging the right of a government institution, when faced with an access to information request under s. 12 of the Act, to refuse to disclose certain information on the basis of the exemptions enumerated in the Act. The appellant also does not challenge the right of the government under s. 16(2) to refuse to confirm or deny the existence of personal information when claiming an exemption. Within the context of a valid statutory scheme that permits the government to refuse to confirm or deny the existence of information (we must assume that it is valid since it is not challenged) and where the judicial review may conclude that the information was properly withheld and must therefore not be disclosed, it necessarily follows that a government institution must be able to make submissions ex parte. Accepting that it is appropriate for the government to refuse to disclose information when there is a legitimate exemption and accepting that it is not inappropriate for the government, when claiming an exemption, to refuse to confirm or deny the existence of information, it can only follow that the government must have the capacity to proceed ex parte. 42 For all the exemptions in the Act other than s. 19(1)(a) or (b) or s. 21 the government's ability to make ex parte submissions is subject to the discretion of the reviewing court. Through the mandatory ex parte provision in s. 51(3), Parliament has seen fit to assert the special sensitive nature of the information involved and has provided added protection and assurance against inadvertent disclosure. Even though the adversarial challenge to the claim of exemptions in such cases is limited, recourse to the Privacy Commissioner and to two levels of court who will have access to the information sought and to the evidence supporting the claimed exemption is sufficient, in my view, to meet the constitutional requirements of procedural fairness in this context. 43 The purpose of the exemption contained in s. 19(1)(a) and (b) is to prevent an inadvertent disclosure of information obtained in confidence from foreign governments or institutions. This provision is directly aimed at the state's interest in preserving Canada's present supply of intelligence information received from foreign sources. Section 21 is aimed at Canada's national security interests. The appellant acknowledges that the state's legitimate interest in protection of information which, if released, would significantly injure national security is a pressing and substantial concern. This Court recognized the interest of the state in protecting national security and the need for confidentiality in national security matters in Chiarelli, supra, at p. 745. Page 17 581 44 The mandatory ex parte in camera provision is designed to avoid the perception by Canada's allies and intelligence sources that an inadvertent disclosure of information might occur, which would in turn jeopardize the level of access to information that foreign sources would be willing to provide. In her reasons, Simpson J. reviewed five affidavits filed by the respondent from CSIS, the RCMP, the Department of National Defence ("DND"), and two from the Department of External Affairs ("DEA"). These affidavits emphasize that Canada is a net importer of information and the information received is necessary for the security and defence of Canada and its allies. The affidavits further emphasize that the information providers are aware of Canada's access to information legislation. If the mandatory provisions were relaxed, all predict that this would negatively affect the flow and quality of such information. This extract from one of the affidavits from the DEA is typical: Canada is not a great power. It does not have the information gathering and assessment capabilities of, for instance, the United States, the United Kingdom or France. Canada does not have the same quantity or quality of information to offer in exchange for the information received from the countries which are our most important sources. If the confidence of these partners in our ability to protect information is diminished, the fact that we are a relatively less important source of information increases our vulnerability to having our access to sensitive information cut off. ... Without these extra procedural protections [the mandatory in camera nature of the hearing and the right to make ex parte representations provided for in s. 51] the substantive protections in sections 19 and 21 are greatly diminished in value. The confidence in foreign states would be diminished because, while the Government of Canada could give assurances that a request for such information could and would be refused under Canadian law, it could not give assurances that it would necessarily be protected from inadvertent disclosure during a hearing. 45 In her reasons Simpson J. provided a brief overview of the affidavit evidence. The affidavit from CSIS stated that sensitive information is received on the understanding that neither the source nor the information will be disclosed unless the provider consents. The affidavit from the RCMP representative discussed the agreements, as for example with Interpol, which operate on the basis that information will be kept confidential. The DND affidavit predicts that increasing the number of persons with access to information during the legal review process would "almost certainly restrict, if not completely eliminate" the possibility of Canada receiving information in the future. One of the affidavits from DEA observed that international convention and practice dictates that such information is received in confidence unless there is an express agreement to the contrary. The other DEA affidavit noted first that confidentiality is necessary to protect information critical to diplomacy, intelligence, and security. This affidavit acknowledged that whether the predicted drying up of information would actually occur if the mandatory protections were loosened would be Page 18 582 hard to know since "you don't know what you are not getting", but he stressed his belief that under a different calculation of risks and benefits, foreign sources would likely screen information passed to Canada for fear that it would be compromised. 46 In the Privacy Act Parliament has recognized and attempted to balance the interests of the appellant in accessing personal information held by government institutions with the significant and legitimate interest of the state in national security and in maintaining foreign confidences. Only in the exceptional and limited circumstance where a government institution is claiming an exemption on the basis that the information involves national security and foreign confidences will the procedural regime in s. 51 requiring ex parte in camera proceedings be activated. The principles of fundamental justice do not require that the applicant have the most favourable proceedings. They do require that the proceedings be fair: Lyons, supra, at p. 362; Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519, 2000 SCC 48, at para. 130; B. (R.), supra, at para. 101. 47 The Privacy Act includes alternative procedural protections in order to protect the interests of applicants. The government does not have unrestrained use of the exemptions. The government bears the burden of establishing that the information is properly exempted (s. 47). As mentioned before, when making ex parte submissions to the reviewing court, the government institution is under a duty to act in utmost good faith and must make full, fair and candid disclosure of the facts, including those that may be adverse to its interest. I also stress again that recourse to these exemptions is subject to two independent levels of scrutiny: the Privacy Commissioner and the Federal Court on a judicial review application under s. 41. Both the Privacy Commissioner and the reviewing court have access to the information that is being withheld (ss. 34(2) and 45) in order to determine whether an exemption has been properly claimed. In addition, the Federal Court has the power to order the release of the personal information if the court determines that the material was not received in confidence from a foreign source or is not within the bounds of the national security exemption. 48 The appellant argues that the provision for discretion in other contexts involving national security, such as those at issue in Chiarelli, supra, shows that there is neither the need, nor the constitutional justification for the mandatory rule in s. 51 of the Act. It is true that s. 51(3) grants no discretion to the reviewing court to receive submissions ex parte. However, in order to determine whether the procedure accords with the principles of fundamental justice, in this case, it must be considered in the specific context in which it arises. 49 I agree with the observations of both Simpson J. and the Federal Court of Appeal that if the statutory scheme in s. 51 were discretionary as opposed to mandatory, it is virtually certain that a reviewing court would exercise its discretion to hear the matter in camera and accept submissions ex parte whenever the government presented appropriate evidence that the undisclosed material was received in confidence from foreign sources or involved national security. 50 It is also important to understand that the information withheld from an applicant under these Page 19 583 exemptions may be quite innocuous to the applicant but, rather, reveal the interest of a government institution in other persons or groups or reveal the source of information, as in the case of information received from foreign sources. Section 19 protects information received in confidence from foreign sources regardless of how innocuous it may be as it relates to the applicant. 51 In this case, given the statutory framework, the narrow basis of the appellant's constitutional challenge and the significant and exceptional state and social interest in the protection of information involved, I find that the mandatory ex parte and in camera provisions do not fall below the level of fairness required by s. 7. B. Section 2(b) 52 The respondent did not appeal the finding of the motions judge (Simpson J.) that the mandatory nature of ss. 51(2)(a) and 51(3) infringe the appellant's rights and freedoms as guaranteed by s. 2(b). Simpson J. held that the appellant's rights as a reader were directly affected if the hearing was held ex parte and in camera. In such situations, members of the public, including the press, are excluded. As a member of the reading public the appellant was entitled to raise s. 2(b) to challenge the mandatory ex parte and in camera provision in s. 51. In support of this, Simpson J. cited Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326, for the principle that freedom of expression in s. 2(b) protects both listeners and readers. 53 The concept of open courts is deeply embedded in our common law tradition and has found constitutional protection in s. 2(b) of the Charter. This Court confirmed in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, the importance of this principle, which is inextricably linked to the rights guaranteed by s. 2(b). As stated by La Forest J. at para. 23: Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings. While the freedom to express ideas and opinions about the operation of the courts is clearly within the ambit of the freedom guaranteed by s. 2(b), so too is the right of members of the public to obtain information about the courts in the first place. Cory J. in Edmonton Journal described the equally important aspect of freedom of expression that protects listeners as well as speakers and ensures that this right to information about the courts is real and not illusory. At pages 1339-40, he states: That is to say as listeners and readers, members of the public have a right to information pertaining to public institutions and particularly the courts. Here the press plays a fundamentally important role. It is exceedingly difficult for many, if not most, people to attend a court trial. Neither working couples nor mothers or fathers house-bound with young children, would find it possible to attend court. Those who cannot attend rely in Page 20 584 large measure upon the press to inform them about court proceedings -- the nature of the evidence that was called, the arguments presented, the comments made by the trial judge -- in order to know not only what rights they may have, but how their problems might be dealt with in court. It is only through the press that most individuals can really learn of what is transpiring in the courts. They as "listeners" or readers have a right to receive this information. Only then can they make an assessment of the institution. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media. That the right of the public to information relating to court proceedings, and the corollary right to put forward opinions pertaining to the courts, depend on the freedom of the press to transmit this information is fundamental to an understanding of the importance of that freedom. The full and fair discussion of public institutions, which is vital to any democracy, is the raison d'être of the s. 2(b) guarantees. Debate in the public domain is predicated on an informed public, which is in turn reliant upon a free and vigorous press. The public's entitlement to be informed imposes on the media the responsibility to inform fairly and accurately. This responsibility is especially grave given that the freedom of the press is, and must be, largely unfettered. [Emphasis added by La Forest J.] To the extent that the in camera provision excludes both the appellant and the public from the proceedings it is clear that the provision violates s. 2(b). The respondent did not appeal the finding of Simpson J. that the mandatory nature of ss. 51(2)(a) and 51(3) infringe the appellant's rights and freedoms as guaranteed by s. 2(b). The respondent has not challenged the appellant's standing to challenge the provision under s. 2(b). I therefore assume, without comment, that he has standing to do so. 54 It remains to determine whether the in camera provision in s. 51(2)(a) can be saved by s. 1 as a reasonable limit that can be demonstrably justified in a free and democratic society. I conclude that it cannot. In relation to s. 21, the appellant concedes that the protection of information which could reasonably be expected to be injurious to Canada's national security is a pressing and substantial concern. In reference to s. 19(1)(a) and (b) I agree with Simpson J. that the preservation of Canada's supply of intelligence information from foreign sources is also a pressing and substantial objective. In camera hearings reduce the risk of an inadvertent disclosure of sensitive information and thus the provision is rationally connected to the objective. 55 The provision fails, however, on the question of minimal impairment. Simpson J. identified a Page 21 585 judicial practice of reading down s. 51 as requiring only those portions of the hearing in which the ex parte submissions are received to be in camera. Indeed, it is evident from her reasons that the Solicitor General consented to proceeding on such a basis in this case ((1994), 80 F.T.R. 81, at para. 5). As an example of this judicial practice Simpson J. cited Ternette v. Canada (Solicitor General), [1992] 2 F.C. 75 (T.D.). 56 Ternette was an application under s. 41 of the Act for a review of a refusal to disclose personal information pursuant to s. 21. Although the respondent Solicitor General filed a notice of motion in advance of the hearing for the hearing to be conducted in camera, at the commencement of the hearing the Solicitor General proposed, with the consent of the applicant and the intervener Privacy Commissioner, that the hearing proceed in open court with the exception that the ex parte submissions would be made in camera. The motions judge acknowledged that s. 51(2) provides that in an application such as the one before him, where the refusal to disclose personal information is based on s. 21, the hearing "shall be heard in camera" (emphasis added). Despite this, he ordered that the hearing proceed in public, as proposed, with the opportunity for the Solicitor General to make submission ex parte and in camera. He explained the reason for his order as follows (at p. 89): That order was based on the principle that the Court's proceedings are open and public unless there be a particular ground urged by a party that is deemed to warrant exceptional proceedings in camera or ex parte. Such a ground exists by virtue of subsections 51(2) and (3). That provision is intended for the protection of public and private interests in information. If it is not seen as necessary for protection of those interests for the entire proceedings but only for a portion of them to be held in camera, by counsel representing the head of the government institution concerned, by the applicant, or by the Privacy Commissioner, in my view it would be contrary to the longstanding tradition of our judicial system and the Rules of this Court (Federal Court Rules, C.R.C., c. 663) for the Court ex proprio motu to direct that the hearing be fully in camera. 57 In our case, counsel for the Solicitor General informed the Court during oral argument that the hearing in this case before MacKay J. with respect to the merits of the exemptions claimed, was heard in camera. On the other hand, the hearings before Simpson J. on the constitutional questions were conducted in public. Counsel for the Solicitor General further represented to the Court that the Department of Justice has interpreted s. 51 narrowly, limiting the in camera requirement only to those portions of a hearing that concern the merits of the exemptions claimed under s. 19(1)(a) or (b) or s. 21 but allowing the Crown to consent to "collateral" issues (i.e., constitutional or procedural issues) being heard in open court. 58 Aside from the constitutional issue, the Solicitor General's interpretation of s. 51(2)(a) is not one that the statute can reasonably bear. Section 51(2)(a) mandates that the hearing of an application under s. 41 and an appeal therefrom relating to personal information that a government Page 22 586 institution has refused to disclose by reason of s. 19(1)(a) or (b) or s. 21 be heard in camera. Contrary to the apparent practice referred to by the Solicitor General, the statute does not limit the in camera requirement to only those parts of a hearing that involve the merits of an exemption. It is not open to the parties, even on consent, to bypass the mandatory in camera requirements of s. 51. Nor is open to a judge to conduct a hearing in open court in direct contradiction to the requirements of the statute, regardless of the proposal put forth by the parties. Unless the mandatory requirement is found to be unconstitutional and the section is "read down" as a constitutional remedy, it cannot otherwise be interpreted to bypass its mandatory nature. 59 The existence of this judicial practice makes clear, though, that the requirement that the entire hearing of a s. 41 application or appeal therefrom be heard in camera, as is required by s. 51(2)(a), is too stringent. The practice endorsed by the Solicitor General and courts alike demonstrates that the section is overbroad in closing the court to the public even where no concern exists to justify such a departure from the general principle of open courts. 60 I have already concluded that the Privacy Act validly obliges a reviewing court to accept ex parte submissions from a government institution, on request, in order to prevent the inadvertent disclosure of sensitive information. It follows, for the same reasons, that these ex parte submissions must be received in camera. The appropriate remedy is therefore to read down s. 51(2)(a) so that it applies only to the ex parte submissions mandated by s. 51(3). A reviewing court retains the discretion, pursuant to s. 46, to conduct the remainder of the hearing or any portion thereof, either in public, or in camera, or in camera and ex parte. VI. Cross-Appeal 61 Subsequent to the decision of Simpson J. in respect of the constitutionality of the provisions, MacKay J. ruled on the applicability of the various exemptions claimed. The cross-appeal concerns the decisions of MacKay J. ( [1998] 2 F.C. 351) and the Federal Court of Appeal ([2000] 3 F.C. 589) with regards to the exemption in s. 22(1)(b) specifically. MacKay J. held that CSIS was justified in claiming the exemption based on s. 22(1)(b) as they had established a reasonable expectation of probable injury to investigations in general. MacKay J. commented that the only evidence on the public record before him was the public affidavit filed by CSIS. The evidence was uncontradicted and strengthened by CSIS's secret affidavit. 62 Soon after MacKay J. issued his reasons on the merits of the exemptions, the Federal Court of Appeal released its decision in Rubin v. Canada (Minister of Transport), [1998] 2 F.C. 430. Rubin involved the interpretation of s. 16(1)(c) of the Access to Information Act, R.S.C. 1985, c. A-1, a similar, almost identical, provision to s. 22(1)(b) of the Act. The court in Rubin held that the exemption involved was limited to circumstances where a reasonable expectation of harm could be established to a current specific investigation or identifiable prospective investigation. The Federal Court of Appeal cited Rubin with approval and held that MacKay J. should not have extended the notion of injury in s. 22(1)(b) to investigations in general. The material was ordered sent back for a Page 23 587 new review. 63 In light of this Court's decision in Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 S.C.R. 773, 2002 SCC 53 , the cross-appeal must be allowed and the decision of the motions judge restored. The motions judge interpreted s. 22(1)(b) in a manner consistent with this Court's ruling in Lavigne. The exemption in s. 22(1)(b) is not limited to current investigations or an identifiable prospective investigation. The appellant, respondent on cross appeal, did not challenge the finding of the motions judge that the Solicitor General had established a reasonable expectation of harm. The decision of MacKay J. is therefore restored. VII. Costs 64 The appellant requested but was not awarded costs of his original application for a declaration that s. 51 was unconstitutional. Nor was he awarded costs on his appeal to the Federal Court of Appeal dealing with the constitutionality of s. 51. He asks this Court to award him costs on this appeal, the original constitutional application before Simpson J. of the Federal Court, Trial Division and on the appeal of the constitutional issue to the Federal Court of Appeal. 65 Although routinely costs follow the outcome of a case, this Court has the discretion, pursuant to s. 47 of the Supreme Court Act, R.S.C. 1985, c. S-26, to award costs on an appeal regardless of the outcome. It also has the discretion to order the payment of costs of the proceedings in the courts below. 66 The Privacy Act specifically contemplates an award of costs to an unsuccessful party where an important and novel issue has been raised. 52... . (2) Where the Court is of the opinion that an application for review under section 41 or 42 has raised an important new principle in relation to this Act, the Court shall order that costs be awarded to the applicant even if the applicant has not been successful in the result. The spirit and purpose of s. 52(2) is a relevant consideration for this Court in the exercise of its discretion. The constitutional issues raised by the appellant in this case were serious, important and novel in the context of access to information litigation. VIII. Conclusion 67 The appeal is allowed in part. I am of the opinion that it is appropriate in this case to award costs of the proceedings, here and in the courts below, to the appellant. The cross-appeal is allowed with costs to the respondent, appellant on the cross-appeal. The constitutional questions are Page 24 588 answered as follows: 1. Do ss. 51(2)(a) and 51(3) of the Privacy Act, R.S.C. 1985, c. P-21, as amended, infringe or deny the appellant's rights or freedoms guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms? Answer: Yes, as was conceded by the respondent. 2. If the answer to Question 1 is in the affirmative, are ss. 51(2)(a) and 51(3) of the Privacy Act reasonable limits, prescribed by law, that can be demonstrably justified in a free and democratic society, pursuant to s. 1 of the Canadian Charter of Rights and Freedoms? Answer: No. Section 51(2)(a) is read down to apply to subsection (3) only. 3. Does s. 51(3) of the Privacy Act infringe or deny the appellant's rights and freedoms guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms? Answer: Assuming without deciding that s. 7 applies, the answer is no. 4. If the answer to Question 3 is in the affirmative, is s. 51(3) of the Privacy Act a reasonable limit, prescribed by law, that can be demonstrably justified in a free and democratic society, pursuant to s. 1 of the Canadian Charter of Rights and Freedoms? Answer: This question need not be answered. * * * * * APPENDIX Relevant Constitutional and Statutory Provisions Canadian Charter of Rights and Freedoms 1. The Canadian Charter of Rights and Freedoms guarantees the rights Page 25 589 and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 2. Everyone has the following fundamental freedoms: ... (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; ... 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. 8. Everyone has the right to be secure against unreasonable search or seizure. Privacy Act, R.S.C. 1985, c. P-21 12. (1) Subject to this Act, every individual who is a Canadian citizen or a permanent resident within the meaning of the Immigration Act has a right to and shall, on request, be given access to (a) any personal information about the individual contained in a personal information bank; and (b) any other personal information about the individual under the control of a government institution with respect to which the individual is able to provide sufficiently specific information on the location of the information as to render it reasonably retrievable by the government institution. ... 16. (1) Where the head of a government institution refuses to give access to any personal information requested under subsection 12(1), the head of the institution shall state in the notice given under paragraph 14(a) (a) that the personal information does not exist, or Page 26 590 (b) the specific provision of this Act on which the refusal was based or the provision on which a refusal could reasonably be expected to be based if the information existed, and shall state in the notice that the individual who made the request has a right to make a complaint to the Privacy Commissioner about the refusal. (2) The head of a government institution may but is not required to indicate under subsection (1) whether personal information exists. ... 19. (1) Subject to subsection (2), the head of a government institution shall refuse to disclose any personal information requested under subsection 12(1) that was obtained in confidence from (a) the government of a foreign state or an institution thereof; (b) an international organization of states or an institution thereof; (c) the government of a province or an institution thereof; or (d) a municipal or regional government established by or pursuant to an Act of the legislature of a province or an institution of such a government. (2) The head of a government institution may disclose any personal information requested under subsection 12(1) that was obtained from any government, organization or institution described in subsection (1) if the government, organization or institution from which the information was obtained (a) consents to the disclosure; or (b) makes the information public. ... Page 27 591 21. The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) the disclosure of which could reasonably be expected to be injurious to the conduct of international affairs, the defence of Canada or any state allied or associated with Canada, as defined in subsection 15(2) of the Access to Information Act, or the efforts of Canada toward detecting, preventing or suppressing subversive or hostile activities, as defined in subsection 15(2) of the Access to Information Act, including, without restricting the generality of the foregoing, any such information listed in paragraphs 15(1)(a) to (i) of the Access to Information Act. 22. (1) The head of a government institution may refuse to disclose any personal information requested under subsection 12(1) (a) that was obtained or prepared by any government institution, or part of any government institution, that is an investigative body specified in the regulations in the course of lawful investigations pertaining to (i) the detection, prevention or suppression of crime, (ii) the enforcement of any law of Canada or a province, or (iii) activities suspected of constituting threats to the security of Canada within the meaning of the Canadian Security Intelligence Service Act, if the information came into existence less than twenty years prior to the request; (b) the disclosure of which could reasonably be expected to be injurious to the enforcement of any law of Canada or a province or the conduct of lawful investigations, including, without restricting the generality of the foregoing, any such information (i) relating to the existence or nature of a particular investigation, (ii) that would reveal the identity of a confidential source of information, or (iii) that was obtained or prepared in the course of an investigation; or ... Page 28 592 (3) For the purposes of paragraph (1)(b), "investigation" means an investigation that (a) pertains to the administration or enforcement of an Act of Parliament; (b) is authorized by or pursuant to an Act of Parliament; or (c) is within a class of investigations specified in the regulations. ... 34... . (2) Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Privacy Commissioner may, during the investigation of any complaint under this Act, examine any information recorded in any form under the control of a government institution, other than a confidence of the Queen's Privy Council for Canada to which subsection 70(1) applies, and no information that the Commissioner may examine under this subsection may be withheld from the Commissioner on any grounds. ... 41. Any individual who has been refused access to personal information requested under subsection 12(1) may, if a complaint has been made to the Privacy Commissioner in respect of the refusal, apply to the Court for a review of the matter within forty-five days after the time the results of an investigation of the complaint by the Privacy Commissioner are reported to the complainant under subsection 35(2) or within such further time as the Court may, either before or after the expiration of those forty-five days, fix or allow. ... 45. Notwithstanding any other Act of Parliament or any privilege under the law of evidence, the Court may, in the course of any proceedings before the Court arising from an application under section 41, 42 or 43, examine any information recorded in any form under the control of a government institution, other than a confidence of the Queen's Privy Council for Canada to which subsection 70(1) applies, and no information that the Court may examine under Page 29 593 this section may be withheld from the Court on any grounds. 46. (1) In any proceedings before the Court arising from an application under section 41, 42 or 43, the Court shall take every reasonable precaution, including, when appropriate, receiving representations ex parte and conducting hearings in camera, to avoid the disclosure by the Court or any person of (a) any information or other material that the head of a government institution would be authorized to refuse to disclose if it were requested under subsection 12(1) or contained in a record requested under the Access to Information Act; or (b) any information as to whether personal information exists where the head of a government institution, in refusing to disclose the personal information under this Act, does not indicate whether it exists. (2) The Court may disclose to the appropriate authority information relating to the commission of an offence against any law of Canada or a province on the part of any officer or employee of a government institution, if in the opinion of the Court there is evidence thereof. 47. In any proceedings before the Court arising from an application under section 41, 42 or 43, the burden of establishing that the head of a government institution is authorized to refuse to disclose personal information requested under subsection 12(1) or that a file should be included in a personal information bank designated as an exempt bank under section 18 shall be on the government institution concerned. ... 49. Where the head of a government institution refuses to disclose personal information requested under subsection 12(1) on the basis of section 20 or 21 or paragraph 22(1)(b) or (c) or 24(a), the Court shall, if it determines that the head of the institution did not have reasonable grounds on which to refuse to disclose the personal information, order the head of the institution to disclose the personal information, subject to such conditions as the Court deems appropriate, to the individual who requested access thereto, or shall make such other order as the Court deems appropriate. Page 30 594 ... 51. (1) Any application under section 41 or 42 relating to personal information that the head of a government institution has refused to disclose by reason of paragraph 19(1)(a) or (b) or section 21 ... shall be heard and determined by the Associate Chief Justice of the Federal Court or by such other judge of the Court as the Associate Chief Justice may designate to hear the applications. (2) An application referred to in subsection (1) or an appeal brought in respect of such application shall (a) be heard in camera; and (b) on the request of the head of the government institution concerned, be heard and determined in the National Capital Region described in the schedule to the National Capital Act. (3) During the hearing of an application referred to in subsection (1) or an appeal brought in respect of such application, the head of the government institution concerned shall, on the request of the head of the institution, be given an opportunity to make representations ex parte. 52. (1) Subject to subsection (2), the costs of and incidental to all proceedings in the Court under this Act shall be in the discretion of the Court and shall follow the event unless the Court orders otherwise. (2) Where the Court is of the opinion that an application for review under section 41 or 42 has raised an important new principle in relation to this Act, the Court shall order that costs be awarded to the applicant even if the applicant has not been successful in the result. Procureurs : Solicitors for the appellant: Ruby & Edwardh, Toronto. Solicitors for the respondent: McCarthy Tétrault, Ottawa; The Deputy Attorney General of Canada, Page 31 595 Ottawa. Solicitors for the intervener the Privacy Commissioner of Canada: Nelligan O'Brien Payne, Ottawa. Page 32 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 Case Name: Sherman v. Canada (Minister of National Revenue - M.N.R.) Between David M. Sherman, appellant, and The Minister of National Revenue, respondent [2004] F.C.J. No. 136 [2004] A.C.F. no 136 2004 FCA 29 2004 CAF 29 236 D.L.R. (4th) 546 317 N.R. 84 30 C.P.R. (4th) 149 2004 D.T.C. 6591 [2004] G.S.T.C. 6 129 A.C.W.S. (3d) 258 Docket A-387-02 Federal Court of Appeal Ottawa, Ontario Desjardins, Létourneau and Evans JJ.A. Heard: In writing. Judgment: January 23, 2004. (17 paras.) Page 1 669 Civil Procedure -- Parties -- Representation of -- Self-representation -- Costs -- Assessment or fixing of costs -- Considerations -- Tariffs Motion brought by appellant taxpayer for costs awarded on an appeal which was successful against the respondent federal government.The respondent contended that the bill of costs tendered ought not to have exceeded an award for party and party costs. The appellant had been awarded a moderate allowance to recognize the time and effort he spent representing himself at trial and on the appeal. Motion allowed in part. The taxpayer was a reputable tax expert. His award for costs should not have exceeded the amount to which he would have been entitled if he had been represented by counsel. A moderate allowance only permitted partial, not full, indemnity of the taxpayer's cost. Statutes, Regulations and Rules Cited: Federal Court Rules, Tariff B, Tariff B Column III, Rules 369, 397, 403. Counsel: Written representations by: David M. Sherman, the appellant, on his own behalf. Sointula Kirkpatrick and Louis L'Heureux, for the respondent. The judgment of the Court was delivered by 1 LÉTOURNEAU J.A.:-- In a judgment dated May 6, 2003, this Court concluded in part: The appellant is entitled to disbursements and a moderate allowance for the time and effort he devoted to preparing and presenting his case before the Trial and the Appeal Divisions of this Court on proof that, in so doing, he incurred an opportunity cost by foregoing remunerative activity. 2 By motion made under Rule 369, the appellant requests that this Court fix the award of costs at $30,528.00 for his time spent and $684.18 for disbursements plus costs of his motion in the amount of $5,760.00 plus disbursements for the twelve hours he spent to prepare and file his motion for costs. The appellant filed an affidavit to his motion detailing his costs. He submits that he worked 66.1 hours on the trial and the appeal. He calculates one half of the opportunity costs of his time at the rate of $550.00 an hour, the other half at $600.00 per hour. He discounted the total figure by 20% in order to meet the requirement that the allowance be moderate. Page 2 670 3 The respondent does not dispute the appellant's request for $684.08 in disbursements but otherwise opposes both his other requests. I should add that the appellant kept a detailed account of the time spent and effort devoted to the preparation and defence of his case. I do not think that the number of hours is unreasonable or subject to argument. 4 The objection is based on two grounds. Firstly, the respondent says that the appellant did not indicate the provisions on which the motion is based, except for Rule 369, which is procedural. The appellant is long out of time to bring his motion either under Rule 397 or under Rule 403 and has not asked for an extension. 5 Secondly, the respondent claims that it is implicit in this Court's judgment and reasons for judgment that the appellant was awarded party and party costs to be calculated according to Tariff B, the applicable tariff under the Rules. 6 This Court's decision, issued on May 6, 2003, was based on case law on which the Court relied to award to the appellant "a moderate allowance for the time and effort devoted to preparing and presenting the case". Rule 397 does not apply as there are no grounds for reconsideration. 7 The appellant could have sought an extension of time and brought a motion under Rule 403 for directions to the taxation officer. In the part of its order dealing with costs, this Court intended not to fix the actual quantum of the costs awarded, but to leave it to a taxation officer to determine such quantum within the parameters of the reasons for the costs order. However, since the Court is now seized with the issue, which is novel, and in view of the wide gap separating the parties with respect to the meaning of a "moderate allowance", it would be better for this Court to rule on it than merely to issue directions. Consequently, the appellant's bill of costs was appropriately brought under Rule 369. 8 The purpose of the costs rules is not to reimburse all the expenses and disbursements incurred by a party in the pursuit of litigation, but to provide partial compensation. The costs awarded, as a matter of principle, are party-and-party costs. Unless the Court orders otherwise, Rule 407 requires that they be assessed in accordance with column III of the table to Tariff B. As the Federal Court properly said in Apotex Inc. v. Wellcome Foundation Ltd. (1998), 159 F.T.R. 233, Tariff B represents a compromise between compensating the successful party and burdening the unsuccessful party. 9 Column III of the table to Tariff B is intended to address a case of average complexity: Apotex Inc. v. Syntex Pharmaceuticals International Ltd., [2001] F.C.J. No. 727, 2001 FCA 137. The Tariff includes counsel fees among the judicial costs. Since it applies uniformly across Canada, it obviously does not reflect a counsel's actual fees as lawyers' hourly rates vary considerably from province to province, from city to city and between urban and rural areas. 10 There is no doubt that the appellant, who was unrepresented, expended time and effort in the pursuit of his claims. However, as the Alberta Court of Appeal pointed out in Dechant v. Law Page 3 671 Society of Alberta, [2001] A.J. No. 373, 2001 ABCA 81, "represented litigants also sacrifice a considerable amount of their own time and effort for which no compensation is paid". Furthermore, their lawyers' fees are not fully reimbursed. I agree that "applying an identical cost schedule to both represented and unrepresented litigants will work an inequity against the represented litigant who, even with an award of costs, will be left with some legal fees to pay and no compensation for a personal investment of time": ibid, paragraph 16. It could also promote self-litigation as an occupation: ibid, paragraph 17; see also Lee v. Anderson Resources Ltd., 2002 ABQB 536, (2002) 307 A.R. 303 (Alta Q.B.). 11 In the present instance, if the appellant had been represented, he would have been awarded party and party costs according to column III of the table to Tariff B. I believe that his award of costs as an unrepresented litigant can, at best, equal, but should not exceed, what would have otherwise been paid to him if he had been represented by counsel. I should add that the unrepresented litigant enjoys no automatic right to the full amount contemplated by the tariff. The amount of the award is in the discretion of the Court. The concept of a "moderate allowance" is an indication of a partial indemnity although, as previously mentioned, I accept that, in appropriate but rare cases, the amount of that indemnity could be equal to what the tariff would grant to a represented litigant. 12 Like Registrar Doolan in City Club Development (Middlegate) Corp. v. Cutts (1996) 26 B.C.L.R. (3d) 39, Registrar Roland of the Supreme Court of Canada concluded in Metzner v. Metzner, [2000] S.C.C.A. No. 527, that the "reasonably competent solicitor approach was unworkable when assessing special costs awarded to a lay litigant": S.C.C. Bulletin 2001, p. 1158. She endorsed the conclusion that the only reasonable approach was to make an award on a quantum meruit basis. 13 In Clark v. Taylor [2003] N.W.T.J. No. 67, Vertes J. of the Northwest Territories Supreme Court was called upon to assess costs for an unrepresented female litigant. At paragraph 12 of the decision, he wrote: In considering what would be a "reasonable" allowance for the applicant's loss of time in preparing and presenting her case, I am not convinced that it is at all appropriate to simply apply what she herself would charge for her hourly fees to a client. The reality is that any litigation will eat up time and expenses whether one is represented or not. 14 He went on to add that the tariff can provide useful benchmarks, even if costs are not assessed on the tariff basis. I agree. The hourly rate claimed by the appellant in the present case is not the benchmark to be used in determining the quantum of a moderate allowance. It is much in excess of the allocation rate contemplated by the tariff. 15 In the present case, this Court was of the view that the appellant, who is a reputable tax expert, raised new issues of public interest as regards the interpretation of an international tax convention Page 4 672 and the right to access the information obtained and exchanged pursuant to that Convention: see paragraph 44 of the decision. The work submitted by the appellant was of good quality . The submissions to the Court were well documented and helpful. There is no doubt that his attendance at the hearing before the Federal Court and our Court was necessary and caused him to lose time from work. Furthermore, the appellant behaved with great propriety throughout the litigation. 16 Bearing all these factors in mind, including the legitimate purpose pursued by the appellant and the fact that costs under Tariff B would have amounted to some $7,200.00, I would fix the moderate allowance at $6,000.00 plus disbursements in the undisputed amount of $684.08. As for the costs and disbursements of bringing this motion, I would allow the sum of $350.00. 17 It would have been useful if the parties, or at least the respondent who was opposing the bill of costs, had given us some of the existing jurisprudence relating to the interpretation and application of the "moderate allowance" notion. LÉTOURNEAU J.A. DESJARDINS J.A.:-- I concur. EVANS J.A.:-- I agree. cp/e/qw/qlaim/qlhcs Page 5 673 674 Indexed as: Southam Inc. v. Canada (Minister of Employment and Immigration) Southam Inc., Julian Beltrame and Canadian Newspapers Company Limited (Applicants) v. Minister of Employment and Immigration (Benoît Bouchard), Chief of Adjudicators for Quebec and the Atlantic Region (Michel Meunier), Attorney General of Canada and Department of Employment and Immigration (Respondents) [1987] 3 F.C. 329 [1987] F.C.J. No. 658 Court File No. T-1588-87 Federal Court of Canada - Trial Division Rouleau J. Ottawa, July 27, 1987. Constitutional law -- Charter of Rights -- Fundamental freedoms -- Freedom of the press -- Applications for prohibition to prevent conduct of detention review hearings under Immigration Act, 1976 until applicants granted access or right to be heard, or for mandamus directing respondent to consider merits of excluding applicants in each case -- Charter s. 2(b) guaranteeing freedom of press -- Freedom of press including access to judicial proceedings -- Detention review hearings of judicial or quasi-judicial nature according to tests in Minister of National Revenue v. Coopers and Lybrand, and part of administration of justice -- Understanding of operations of such tribunals necessary for legitimacy of authority and achieved by public access -- Right of access limited when conficts with competing rights -- Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 2(b) -- Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 29(3) (as am. by S.C. 1985, c. 26, s. 112), 104(6), 119. Page 1 675 Immigration -- Practice -- Detention review hearings of judicial or quasi-judicial nature according to criteria in Minister of National Revenue v. Coopers and Lybrand -- Charter, s. 2(b) guarantee of freedom of press including access to judicial proceedings -- Prohibition and mandamus ordered to prevent adjudicators from conducting hearings in absence of applicants unless right of access limited in particular case by competing right -- Applicants to have right to make submissions if objections to public access raised -- Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 2(b) -- Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 29(3) (as am. by S.C. 1985, c. 26, s. 112), 104(6), 119. Practice -- Commencement of proceedings -- Applications for declarations under Charter s. 24(1) for public access to [page330] detention review hearings under Immigration Act, 1976, or for right to make submissions on issue of access -- Applications by originating motion -- Applications dismissed -- Declarations may be sought by action only unless respondent expressly consents -- Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.), s. 24(1). The Chief of Adjudicators ordered that the media not be allowed access to certain immigration detention review hearings unless the particular migrant consented. The applicants moved for declarations pursuant to the Charter, subsection 24(1) directing that the Chief of Adjudicators conduct the hearings in public, or allow the applicants to make submissions on a case-by-case basis in support of its application to have access to and report on the proceedings; prohibition to prevent the conduct of the hearings until the applicants are granted the right to be present or the right to be heard before being excluded; and mandamus directing the respondent to consider in each case the merits of excluding the applicants. Held, the application for mandamus and prohibition should be allowed. The applications for declarations under the Charter, subsection 24(1) cannot be allowed because the applicants proceeded by means of an originating motion. Declarations may be sought only by way of an action unless the respondent expressly consents, and not merely acquiesces with no objection. The respondent did not expressly consent to this form of proceedings. The Immigration Act, 1976 is silent with respect to public access to detention review hearings. Where the enabling legislation is silent on a point of procedure, a statutory decision-maker is the master of his own proceedings and may determine the procedure to be followed. However, paragraph 2(b) of the Charter guarantees the freedom of "expression, including freedom of the press and other media of communication." Freedom of the press encompasses a right of access to judicial proceedings. The hearings in question involved a statutory body rather than a court and it had to be determined if they are judicial or quasi-judicial and by implication subject to accessibility. The four tests set out by Dickson J. [as he then was] in Minister of National Revenue v. Coopers and Lybrand to determine if a proceeding is judicial or quasi-judicial were met by the detention review hearings. It is not unreasonable to extend to proceedings of such decision-makers the application of Page 2 676 the principle of public accessibility. 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 only be done if their proceedings are open to the public. The applicants have a prima facie right of access to the [page331] detention review proceedings which may, however, be limited when it conflicts with competing rights or interests. Cases Judicially Considered Applied: Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495. Considered: Re Southam Inc. and The Queen (No. 1) (1983), 3 C.C.C. (3d) 515 (Ont. C.A.). Referred to: Wilson v. Minister of Justice, [1985] 1 F.C. 586 (C.A.). Lussier v. Collin, [1985] 1 F.C. 124 (C.A.). Groupe des éleveurs de volailles de l'est de l'Ontario v. Canadian Chicken Marketing Agency, [1985] 1 F.C. 280 (T.D.). Pacific Salmon Industries Inc. v. The Queen, [1985] 1 F.C. 504 (T.D.). Millward v. Public Service Commission, [1974] 2 F.C. 530 (T.D.). St-Louis v. Treasury Board, [1983] 2 F.C. 332 (C.A.). Re Southam Inc. and The Queen (1986), 26 D.L.R. (4th) 479 (Ont. C.A.); aff'g (1985), 14 D.L.R. (4th) 683 (Ont. H.C.). Counsel: Richard G. Dearden and Alan D. Reid, Q.C., for the applicants. Brian R. Evernden, for the respondents. P. M. Jacobsen, for the intervenor (applicant). Solicitors: Gowling and Henderson, Ottawa, for the applicants. Deputy Attorney General of Canada, for the respondents. Paterson, MacDougall, Toronto, for the intervenor (applicant). The following are the reasons for order delivered orally in English by Page 3 677 1 ROULEAU J.:-- The applicants seek, by way of originating motion, a number of orders. In essence their motion concerns freedom of the press and the public's right of access to immigration detention [page332] review hearings presently being pursued in Halifax, Nova Scotia. 2 The facts in this case have not been made entirely clear, but those that are germane to the ultimate underlying issue in dispute are sufficiently clear. They are set out in point form as follows: - On July 12, 1987, 174 passengers on the M.V. Amelie arrived in Nova Scotia and claimed to be refugees from India. (The passengers hereinafter shall be referred to as "migrants".) - On July 15, 1987, the migrants were ordered detained, pursant to the Immigration Act, 1976 [S.C. 1976-77, c. 52] in the gymnasium building at the Canadian Armed Forces Base Stadacona in Halifax. - On July 20, 1987, immigration adjudicators began conducting inquiries. Pursuant to subsection 29(3) [as am. by S.C. 1985, c. 26, s. 112] of the Act, an adjudicator allowed an application by the Canadian Broadcasting Corporation that an inquiry be conducted in public. - On July 21, 1987, three similar applications, in respect of three other inquiries, were allowed by three more adjudicators. - Pursuant to subsection 104(6) of the Act, the continued detention of a migrant must be reviewed by an adjudicator at least once during each seven-day period. Since these migrants had been detained as of July 15, 1987, their continued detention had to be reviewed by July 22, 1987. As a result of the deadline approaching, during the evening of July 21, 1987, the adjudicators ceased conducting inquiries and began conducting detention review hearings. The Chief Adjudicator ordered that the media not be allowed access to these hearings unless the particular migrant consented; no submissions respecting the media's access were presented by their counsel (whether there was a specific request to be heard and a specific denial by the [page333] Chief of Adjudicators is not clear from the evidence). - The Immigration Act, 1976 is silent on the point of whether detention review hearings are to be held in public or in camera. - During the evening of July 21, 1987 and throughout July 22, 1987, the adjudicators conducted detention review hearings. - In response to the Chief of Adjudicators decision that the detentions be reviewed in camera, the applicants moved in this Court for several orders. The four major ones, which comprise the substantive issues of this case, are the following: (1) an Order pursuant to section 24 of the Canadian Charter of Rights Page 4 678 and Freedoms directing that the Respondent, MICHEL MEUNIER conduct the proceedings under section 104(6) of the Immigration Act, 1976, the continued detention of persons, allegedly being Indian migrants transported on board the M.V. Amelie, in a manner consistent with section 2b) of the Charter, thereby permitting the Applicants and members of the public to exercise the fundamental freedom to be present at all proceedings brought pursuant to section 104(6) of the Immigration Act, 1976; (2) in the alternative, an order pursuant to section 24 of the Canadian Charter of Rights and Freedoms directing that the Respondent, MICHEL MEUNIER conduct the aforesaid proceedings in a manner consistent with section 2(b) of the said Charter by allowing the said Applicants to make submissions on a case by case basis in support of its application to have access to and report on the proceedings pursuant to section 104(6) of the Immigration Act, 1976; (3) an order in the nature of prohibition to prevent the Respondent. MICHEL MEUNIER from conducting a review pursuant to section 104(6) of the Immigration Act, 1976 in the aforesaid proceedings until he has extended to the Applicants the right to be present at such proceedings, or, in the alternative, the right to be heard before being excluded from those proceedings; (4) an order in the nature of mandamus directing the Respondent MICHEL MEUNIER to exercise his duty [page334] under the Immigration Act, 1976 to consider in each case, when exercising his authority under section 104(6) of the said Act, the merits of excluding the Applicants from the aforementioned proceedings. 3 It will be convenient to deal with the first two together and the last two as another section. I. Re: Charter, Subsection 24(1) Declarations: 4 This requested relief can be considered quite summarily because of a technical procedural problem. The applicants seek these two declarations by way of an originating motion. This Court has consistently held, however, that declarations may be sought only by way of an action unless the respondent expressly consents, and not merely acquiesces with no objection [Wilson v. Minister of Justice, [1985] 1 F.C. 586 (C.A.); Lussier v. Collin, [1985] 1 F.C. 124 (C.A.); Groupe des éleveurs de volailles de l'est de l'Ontario v. Canadian Chicken Marketing Agency, [1985] 1 F.C. 280 (T.D.); and Pacific Salmon Industries Inc. v. The Queen, [1985] 1 F.C. 504 (T.D.)]. This rule serves to ensure that the Court will not have to issue declaratory judgments in a factual vacuum. Here the respondent did not expressly consent to this form of proceedings, and indeed some facts were in dispute, or at least uncertain. Consequently, no declarations, pursuant to subsection 24(1) of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Page 5 679 Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)], can issue. This, though, does not end the discussion of the Charter in this case; it still must be considered in the alternative prayers for relief in the context of administrative law. II. Re: Prerogative Writs of Prohibition and Mandamus: 5 In requesting these two orders, the applicants in effect seek an order prohibiting the adjudicators from conducting the detention review hearings in [page335] camera, or at least requiring the adjudicators in each case to hear submissions from the applicants on the issue of their access to the hearings. 6 The adjudicators exercise the authority and powers conferred upon them by the Immigration Act, 1976. This Act is silent with respect to the procedural point of public access to the detention review hearings. Where the enabling legislation is silent on a point of procedure, a statutory decision maker is the master of his own proceedings and may determine the procedure to be followed [Millward v. Public Service Commission, [1974] 2 F.C. 530 (T.D.) and St-Louis v. Treasury Board, [1983] 2 F.C. 332 (C.A.)]. Thus, on the surface the adjudicators appear to have acted within their jurisdictional limits in ordering that the detention review hearings be held in camera. 7 However, superimposed upon that general rule of administrative law is the Canadian Charter of Rights and Freedoms. Paragraph 2(b) of the Charter guarantees everyone the freedom of "expression, including freedom of the press and other media of communication." Courts that have had to interpret this constitutional provision have held that freedom of the press encompasses a right of access to judicial proceedings [Re Southam Inc. and The Queen (No. 1) (1983), 3 C.C.C. (3d) 515 (Ont. C.A.), which was reaffirmed by the same Court in Re Southam Inc. and The Queen (1986), 26 D.L.R. (4th) 479, adopting the trial judgment of Holland J. (1985), 14 D.L.R. (4th) 683 (Ont. H.C.)]. Some comments of MacKinnon, A.C.J.O. from Re Southam (No. 1) are germane to the case at bar. At page 521, he wrote the following: There can be no doubt that the openness of the courts to the public is one of the hallmarks of a democratic society. Public accessibility to the courts was and is a felt necessity; it is a restraint on arbitrary action by those who govern and by the powerful. Then, at page 525 he continued: It is true, as argued, that free access to the courts is not specifically enumerated under the heading of fundamental [page336] freedoms but, in my view, such access, having regard to its historic origin and necessary purpose already recited at length, is an integral and implicit part of the guarantee given to everyone of freedom of opinion and expression which, in terms, includes freedom of the press. However the rule may have had its origin, as Mr. Justice Page 6 680 Dickson pointed out, the "openness" rule fosters the necessary public confidence in the integrity of the court system and an understanding of the administration of justice. 8 That decision arose in the context of a court proceeding. The detention review hearing in this case involves a statutory body exercising its functions and it is to be determined if they are judicial or quasi-judicial in nature and by implication subject to accessibility; does the openness rule apply to their proceedings. Mr. Justice Dickson, as he then was, in Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495 determined that a proceeding can be found to be judicial or quasi-judicial if it met certain tests and he wrote as follows, at page 504: (1) Is there anything in the language in which the function is conferred or in the general context in which it it exercised which suggests that a hearing is contemplated before a decision is reached? (2) Does the decision or order directly or indirectly affect the rights and obligations of persons? (3) Is the adversary process involved? (4) Is there an obligation to apply substantive rules to many individual cases rather than, for example, the obligation to implement social and economic policy in a broad sense? 9 I am satisfied that these tests in the case at bar have been met and it is not at all unreasonable to extend to proceedings of such decision-makers the application of this principle of public accessibility. After all, 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. [page337] 10 I am of the view that the applicants have a prima facie right of access to the detention review proceedings. This right, like all rights, is not absolute, however. That is to say, it may be limited when it comes into conflict with other competing rights and interests. For example, in the context of a detention review proceeding a conflicting right could be a migrant's section 7 right to life, liberty Page 7 681 or security of the person which could be jeopardized by the publication of his/her identity. Or, as another example, the public's interest in national security could, in some situations, constitute a section 1 reasonable limit to the openness of the hearing [e.g. section 119 of the Immigration Act, 1976 prescribes a limit upon public access to security or criminal intelligence evidence presented by the Minister and Solicitor General]. 11 In accordance with the foregoing, orders of prohibition and mandamus shall issue. The adjudicators are prohibited from conducting the detention review hearings in the absence of the applicants unless the applicants' right of access is outweighed or limited in any given case by counterbalancing rights or interests; if any objections to the public's access is raised, the applicants must be given an opportunity to present submissions on this point. cp/d/qlndn Page 8 682 Home Rulings Decisions by Year 2009 May Decision No. 219-A-2009 Canadian Transportation Agency www.cta.gc.ca May 28, 2009 MOTION by Leslie Tenenbaum for non-publication of his name and certain personal information in a decision of the Canadian Transportation Agency. File No. U3570/08-32 Background [1] Leslie Tenenbaum (applicant) is seeking redress from Air Canada (respondent) with respect to a travel issue. Facilitation efforts were unsuccessful. Prior to the opening of the pleadings on that issue, the applicant asked for an order that his name and certain personal information not be disclosed publicly by the Canadian Transportation Agency (Agency) or the respondent and that his initials be used in place of his name in any final Agency decision. [2] In Decision No. LET-AT-A-145-2008, the Agency asked for further information and invited the applicant to indicate the reasons for his claim and, if any specific direct harm is asserted, the nature and extent of the harm that would likely result to him if his name and certain information were disclosed in the decision. The applicant provided no argument regarding the harm that would result. [3] In February 2009, the Agency amended its privacy policy. The amended policy is consistent with the Agency's original policy; however, it provides more clarity as to the Agency's position on the open court principle. Therefore, to ensure the fairness of the process, the Agency, in Decision No. LET-AT- A-41-2009, provided the applicant with the opportunity to make further representations in light of the amended policy. In that Decision, the Agency also advised the applicant of the test the Agency would apply when dealing with the motion. [4] The applicant asserts, only, a positive right to privacy under the Privacy Act, R.S.C., 1985, c. P-21. However, he clarified his request and asked the Agency for an order that, if his name is disclosed, there be no reference to certain personal information, or if there is reference to certain personal information, his name be substituted by his initials. [5] The respondent opposes this request. [6] As indicated in the reasons that follow, the Agency finds that the applicant failed to meet his burden of proof. Consequently, the applicant's motion is denied. Decision No. 219-A-2009 CTA | Decision No. 219-A-2009 https://www.otc-cta.gc.ca/eng/ruling/219-a-2009 1 of 10 683 Issue [7] This application raises the question of whether the applicant is entitled to have the protection requested. Specifically, the issue to be addressed is whether the applicant has met the burden of proving that an order is necessary to prevent a serious risk to an important interest, and that its salutary effects outweigh the deleterious effects on the freedom of expression of those affected by the order. Positions of the parties Applicant [8] The applicant states that he is not making a claim for confidentiality pursuant to section 23 of the Canadian Transportation Agency General Rules, SOR/2005-35 (General Rules). Rather, he requests that the Agency not publicly disclose personally identifiable information, because it is unnecessary, would violate the applicant's right to privacy, and would be contrary to the Agency's obligations under the Privacy Act. [9] The applicant argues that the "Open Court Principle is not absolute. It is merely a presumption, in favour of the public, that provides for public access to and/or disclosure to the public of judicial and quasi-judicial proceedings and findings." [10] The applicant states that the Agency is governed by the Privacy Act and must comply with its obligations and protect the privacy of personal information gathered by the Agency as part of its complaints process. [11] The applicant addresses subsection 8(2) of the Privacy Act, which describes the circumstances under which he claims the Agency is permitted to publicly disclose personal information. [12] The applicant asserts that the public disclosure of his personal information by the Agency is not permitted under paragraph 8(2)(a) as this is not the purpose for which the Agency obtained or compiled the personal information of the applicant, and under paragraph 8(2)(b), such disclosure is not explicitly authorized by an Act of Parliament or a regulation. Furthermore the applicant maintains that under subparagraph 8(2)(m)(i), public disclosure of his personal information by the Agency is not permitted until it has been established by the Agency that there might be a compelling public interest in disclosure of such information which outweighs the complainant's right of privacy. [13] The applicant states that the public disclosure of his personal information was not a precondition to the filing of a complaint, was not consented to by him, is not required in order for the Agency to accomplish its mandate, and that the Agency can successfully discharge its mandate without public disclosure of his personal information. The applicant claims that the Agency can maintain the interests of its mandate, the public, the spirit of the open court principle, and the applicant's right to privacy, if it: depersonalizes publication of its findings and decisions by assigning random initials in place of the applicant's name; or publishes only a summary of its findings and decisions without any personal information of the applicant. [14] Finally, the applicant provided two documents which, according to him, illustrate an example of the practices of other Government of Canada agencies that do not disclose information in certain cases where the publication of matters of a private nature is at issue. The first document is a letter from the CTA | Decision No. 219-A-2009 https://www.otc-cta.gc.ca/eng/ruling/219-a-2009 2 of 10 684 Office of the Privacy Commissioner of Canada in which the findings of an investigation into privacy matters with a branch of Service Canada are revealed. The second document is a circulated notice from Service Canada that addresses changes to the manner in which decisions will be posted on the Internet. [15] The applicant argues that these documents demonstrate that an appropriate balance must be struck between the open court principle and an individual's right to privacy under the Privacy Act, and that the determination in the latter is relevant to the applicant's complaint. [16] The applicant emphasizes that he is not requesting an outright prohibition on the release of personal information and that he has no objection to the Agency identifying him as a complainant by name without reference to some other personal information, or identifying him as a complainant by his initials and referring to other personal information. [17] The applicant states that most people probably regard the privacy of the type of information referred to in his application as the most important privacy right that they have, and that no one should have to relinquish the right to keep that information private when filing an application with the Agency. Air Canada [18] Air Canada opposes the applicant's request. It states that, as evidenced by the General Rules, the granting of a request for confidentiality is within the power of the Agency. However, what the applicant is asking for in this particular case is to render a depersonalized decision or publish a decision without any personal information on the applicant being publicly disclosed. [19] Air Canada submits that in the absence of specific regulations, as in the applicant's case, the various decisions of the Agency are the only tools to be used by air carriers and other service providers as guidance to see how each case is determined based on its particular facts. [20] Air Canada notes that the documents presented by the applicant refer to a recommendation of the Privacy Commissioner of Canada, which is not an adjudicative body. Air Canada points out that a recent decision by the Supreme Court of Canada (Supreme Court) analyzed the powers of the Privacy Commissioner of Canada and concluded that it was not a court. [21] Air Canada maintains that the personal information compiled by the Agency is for a use that is consistent with the purpose and mandate of the Agency. Air Canada submits that the purpose for the publication of the decision, namely the educational and precedent components, could not be accomplished if the specifics for which a party seeks recognition are not analyzed and described in detail. [22] According to Air Canada, the open court principle is at the core of a transparent and accessible justice system. It further states that privacy rights are to be granted equally to all parties, and the Agency's mandate would not be accomplished without full disclosure and identification of the claimant and the air carrier. Air Canada submits that the "public interest in disclosure of the identification of both parties is outweighed by any invasion of privacy that would result from this disclosure." [23] Air Canada states that it is the practice of other tribunals to publish their decisions and to make them accessible online without any depersonalization or removal of details. Air Canada cites as examples the Canadian Human Rights Tribunal, the Quebec Commission des lésions professionnelles, and the Ontario Workplace Safety and Insurance Appeals Tribunal, all of which publish decisions that are made available and are public. Analysis and findings CTA | Decision No. 219-A-2009 https://www.otc-cta.gc.ca/eng/ruling/219-a-2009 3 of 10 685 [24] The applicant is asking for an order that, if his name is disclosed, there be no reference to certain personal information, or if there is reference to certain personal information, his name be substituted by his initials. Both of these requests depart from the presumptive openness of judicial proceedings known as the "open court principle". [25] Before considering the applicant's entitlement to the relief sought, the Agency will set out the rules of law and well-established principles governing this type of motion as developed by the courts as well as their application to administrative tribunals. Canada's judicial system [26] The Constitution Act, 1867, amended in 1982, is the supreme law of Canada. It recognizes that Canada's system of justice is rooted in a tradition of rule of law and democratic principle. The amended Act entrenches the Canadian Charter of Rights and Freedoms, R.S.C., 1985, Appendix II, No. 44, Schedule B (Charter) which guarantees individuals fundamental rights and freedoms. [27] The judicial system is one of the pillars of our society. It is the instrument by which individuals' fundamental rights are preserved. As such, it must provide for a democratic environment and promote impartiality, transparency and accountability where each person has the knowledge and expectation that they will be treated fairly. That is why independence and transparency of the judiciary are fundamental elements of our democratic system. Linked to this concept of democracy is the importance of public scrutiny of courts. Public access to judicial proceedings and judicial records is indispensable to ensure public confidence in the system and concomitant judicial accountability. [28] The Supreme Court has recognized that openness of the courts in Canada is an intrinsic component of the fundamental right of freedom of expression guaranteed by section 2 of the Charter, which provides that "everyone has the following fundamental freedoms: a) freedom of conscience and religion; b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; c) freedom of peaceful assembly; and d) freedom of association." [29] The following sets out the Supreme Court's interpretation and application of the "open court principle." Freedom of Expression: the "open court principle" [30] As indicated, openness is an intrinsic component of our judicial system. In Vancouver Sun (Re), [2004] 2 S.C.R. 332, the Supreme Court indicated that the "open court principle" is a "hallmark of a democratic society". It is a principle that "has long been recognized as a cornerstone of the common law" and "necessary to maintain the independence and impartiality of courts [...] 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." For the public to understand the judicial system, it must have access to it in order to be better informed. "Where there is no publicity there is no justice." (Scott v. Scott [1913] A.C. 417). [31] On this point, the Supreme Court has linked the open court principle to the fundamental values it supports such as the public confidence in the justice system, the public's understanding of the administration of justice, and the accountability of courts and judges. "The principle of open courts is inextricably tied to the rights guaranteed by section 2(b). Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings." (Canadian Broadcasting Corp. v. New Brunswick (A.G.), [1996] 3 S.C.R. 480). It permits the public to see that justice is administered in a non-arbitrary manner according to the rule of law. CTA | Decision No. 219-A-2009 https://www.otc-cta.gc.ca/eng/ruling/219-a-2009 4 of 10 686 [32] Under the "open court principle," parties cannot expect, as a right, that the details of their dispute remain private. However, the Supreme Court has acknowledged that in particular situations, the principle of openness must yield when the integrity of the administration of justice is at stake. The approach adopted by the Supreme Court establishes that the principle of openness is not absolute (R. v. Mentuck, [2001] 3 S.C.R. 442 (Mentuck decision)) and sometimes must concede to the need to protect other fundamental rights. As Bastarache J. said in Named person v. Vancouver Sun, [2007] 3 S.C.R. 252, "In Canada, as in any truly democratic society, the courts are expected to be open, and information is expected to be available to the public. However, from time to time, the safety or privacy interests of individuals or groups and the preservation of the legal system as a whole require that some information be kept secret." [33] Where sensitive privacy concerns arise, courts have established that these must be contextually balanced with a view to preserving the integrity of the administration of justice. In Toronto Star Newspapers Ltd v. Ontario, [2005] 2 S.C.R. 188, the Supreme Court explained that "under certain conditions, public access to confidential or sensitive information related to court proceedings will endanger and not protect the integrity of our system of justice." [34] The "open court principle" is therefore not absolute. For the administration of justice to properly work it will sometimes be necessary to protect social values. A balancing exercise must be done. Limiting the openness: A balancing exercise [35] Since 1994, it has been held that the judicial discretion to permit a departure from the strong presumption of openness must be exercised within the general framework of a test developed by the Supreme Court in Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, and later adapted in the Mentuck decision, referred to as the Dagenais/Mentuck test: A publication ban should only be ordered when such an order is necessary to prevent a serious risk to the proper administration of justice, because reasonable alternative measures will not prevent the risk, and when the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. [36] This test, developed in the context of a criminal matter, was later adapted for the issuance of confidentiality orders in a civil matter, Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522: A confidentiality order should only be granted when (1) such an order is necessary to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and (2) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings. [37] The Supreme Court then indicated that "three important elements are subsumed under the first branch of the test. First, the risk must be real and substantial [?] Second, the important commercial interest must be one which can be expressed in terms of a public interest in confidentiality, where there is a general principle at stake. Finally, the judge is required to consider not only whether reasonable alternatives are available to such an order but also to restrict the order as much as is reasonably possible while preserving the commercial interest in question." [38] The onus is on the applicant to establish, on a balance of probabilities, the need for the protective CTA | Decision No. 219-A-2009 https://www.otc-cta.gc.ca/eng/ruling/219-a-2009 5 of 10 687 order. As a general rule, embarrassment is not enough to overcome the public policy favouring openness of the court system. As was stated by Dickson J. (as he then was) in A.G. (Nova Scotia) v. MacIntyre, [1982] 1 S.C.R. 175: Many times it has been urged that the "privacy" of litigants requires that the public be excluded from court proceedings. It is now well established, however, that covertness is the exception and openness the rule. Public confidence in the integrity of the court system and understanding of the administration of justice are thereby fostered. As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings. [39] It is clear that those well-established principles are binding on judicial courts. This was noted again very recently in A.B. v. Minister of Citizenship and Immigration, 2009 F.C., 325. The question is, however, to which extent they apply to administrative tribunals. Whether the rules governing openness are equally applicable to administrative tribunals [40] Judicial tribunals are created as per the Constitution, and administrative tribunals are created by the Government for the purpose of implementing a policy. Whether the decision of an administrative tribunal is one required by law to be made on a quasi-judicial or non-quasi-judicial basis will depend upon the legislative intention. If Parliament has made it clear that the person or body is required to act judicially, in the sense of being required to afford an opportunity to be heard, the courts must give effect to that intention. [41] There is no doubt that public scrutiny is important for both judicial and quasi-judicial decisions. In Southam Inc. v. Canada (Minister of Employment and Immigration), [1987] 3 F.C. 329, the Federal Court wrote that "[...] it is not at all unreasonable to extend to proceedings of such decision-makers the application of this principle of public accessibility. After all, 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'." [42] The legitimacy of any tribunal's authority requires that confidence in its integrity and understanding of its operations be maintained, and this can only occur if proceedings are open to the public. This was reaffirmed more recently by the Saskatchewan Court of Queen's Bench in Germain v. Automobile Injury Appeal Commission, [2009] S.J. No. 169 (Germain decision), when it concluded that "[t]he publication of the decisions is in my view incidental and necessary to the proper functioning of this tribunal as it is to many other tribunals with an adjudicative function [?] Moreover the Commission is part of the administration of justice and the open courts principle referred to later in this decision mandates openness and accessibility to the decisions of the Commission." [43] Reviewing Courts have upheld the position that the "open court principle" applies to quasi-judicial tribunals. As noted in the Germain decision, "[t]his is so despite the fact that it is not a court. The principle is not restricted to courts only, but is a theme running through the administration of justice in this country." (See also Pacific Press Ltd. v. Canada (Minister of Employment and Immigration) (C.A.), [1991] 2 F.C. 327; Travers v. Canada (Chief of Defence Staff) (T.D.), [1993] 3 F.C. 528.) Application of the rules to the Agency [44] The Agency is created pursuant to an act of Parliament, the Canada Transportation Act, S.C., 1996, c. 10, as amended (CTA). The Agency's purpose is to implement the national transportation policy, which is found in section 5 of the CTA. More specifically, the mandate of the Agency is to administer economic regulatory provisions of Acts of Parliament affecting modes of transport under federal jurisdiction as well as removing undue obstacles to the mobility of persons with disabilities within the federal transportation network. In its role as a quasi-judicial administrative tribunal with CTA | Decision No. 219-A-2009 https://www.otc-cta.gc.ca/eng/ruling/219-a-2009 6 of 10 688 court-like powers, the Agency ensures that processes are responsive, fair and transparent, and considers the interests of all parties in the national transportation system. [45] While being subject to specific rules laid down by statutes or regulations, the Agency is also the master of its own procedures. For example, section 40 of the General Rules provides that an application to the Agency shall be made in writing and be commenced by filing with the Agency the full name, address, and telephone number of the applicant or the applicant's representative. The Agency may therefore conclude that an application is not properly filed if it lacks that information. As well, section 23 of the General Rules provides that any document filed in respect of any proceeding will be placed on its public record, unless the person filing the document makes a claim for its confidentiality. The person making the claim must indicate the reasons for the claim. The record of the proceeding will therefore be public unless a claim for confidentiality has been accepted. Section 22 of the CTA provides that the Secretary of the Agency must, on the application of any person, issue to the applicant a certified copy of a decision issued by the Agency. [46] The Agency, being a quasi-judicial tribunal, is bound by the rules governing the "open court principle". Consequently, in order to address the motion of the applicant, it must apply the Dagenais/Mentuck test described above. Agency's applicable policies [47] The Agency recognizes the importance of privacy as a fundamental value in our society. In an effort to establish a fair balance between public access to its decisions and an individual's right to privacy, the Agency applies the following policies. Canadian Judicial Council Protocol [48] The Agency has adopted the protocol approved by the Canadian Judicial Council in March 2005 regarding the use of personal information in judgments. Web Robot Exclusion [49] The Agency protects personal information contained in its decisions posted on its Web site by applying instructions using the web robots exclusion protocol recognized by Internet search engines (e.g., Google and Yahoo), and which prevents Internet searching of full-text versions of decisions. This enables the Agency to fully achieve its statutory mandate and, at the same time, prevents unnecessary invasion into the privacy of individuals. Privacy statement - Agency's complaint process [50] The information regarding the Agency's privacy policy can be found on its Web site. Each applicant is also made aware at the outset that the Agency applies the open court principle and that its proceedings are public. Application to this case [51] In this case, the Agency required the applicant to support his motion by providing well-grounded evidence in order to meet the Dagenais/Mentuck test. The applicant, however, chose not to provide evidence. The applicant's only stated explanation for his request is premised on his positive right to privacy. [52] The applicant has acknowledged the nature of the open court principle but is arguing that it must be juxtaposed against his corresponding rights of privacy. His main argument rests in the contention CTA | Decision No. 219-A-2009 https://www.otc-cta.gc.ca/eng/ruling/219-a-2009 7 of 10 689 that the public disclosure of personally-identifiable information is not necessary, would violate his right to privacy, and would be contrary to the Agency's obligations under the Privacy Act. [53] The Agency must ask first whether an order is necessary to prevent a serious risk to an important interest, and second, whether the salutary effects outweigh the deleterious effects on the freedom of expression of those affected by the order. In other words, is an order necessary to prevent a serious risk to the applicant's interest? And, in the affirmative, is it so important that the right to freedom of expression and more specifically, the "open court principle" should be disregarded? [54] The first element under the first branch of the test that the applicant must show is that the risk in question must be real and substantial. Second, the important interest must be one which can be expressed in terms of a public interest in confidentiality, where there is a general principle at stake. Finally, the Agency is required to consider not only whether reasonable alternatives are available to such an order but also to restrict the order as much as is reasonably possible while preserving the interest in question. [55] As indicated before, the applicant alleges that his right to privacy is in accordance with the Privacy Act. He argues that the public disclosure of his personal information in the Agency's decision is not permitted under paragraphs 8(2)(a), (b) and (m) of the Privacy Act and that public disclosure is not the purpose for which the Agency obtained or compiled his personal information. [56] The applicant notes, in particular, that there is no Act of Parliament or regulation authorizing the Agency to disclose personal information. The applicant asserts that it is up to the Agency to show a compelling public interest in disclosure that will outweigh his right to privacy. The applicant also argues that the Agency's mandate can be discharged without public disclosure of personal information. [57] Section 3 of the Privacy Act broadly defines personal information under subsection (1) as "information about an identifiable individual that is recorded in any form". Paragraphs 3(j) through (m) provide exceptions to what is included in the definition of "personal information". [58] Subsection 8(2) of the Privacy Act provides for situations where personal information may be disclosed. Of particular relevance to the present application is: (a) for the purpose for which the information was obtained or compiled by the institution or for a use consistent with that purpose; (b) for any purpose in accordance with any Act of Parliament or any regulation made thereunder that authorizes its disclosure; [...] (m) for any purpose where, in the opinion of the head of the institution, (i) the public interest in disclosure clearly outweighs any invasion of privacy that could result from the disclosure. [59] The applicant's interpretation of this scheme of the Privacy Act cannot stand as is. In deciding a case and explaining the reasons for the decision, the Agency is using personal information in a way that is consistent with the purpose for which it was obtained. More importantly, the Agency associates names with personal identifiers only when it is necessary for a proper and complete understanding of the issues at stake. The Agency concludes that the right to privacy alleged by the applicant is not found in the Privacy Act. [60] However, as indicated above, during judicial proceedings, the rule of openness may come into conflict with other competing rights, such as the right to privacy. The privacy argument has been tested many times by the courts. In fact, the Supreme Court has interpreted privacy rights as being constitutionally protected under sections 7 and 8 of the Charter. CTA | Decision No. 219-A-2009 https://www.otc-cta.gc.ca/eng/ruling/219-a-2009 8 of 10 690 Liberty interests: Right to privacy [61] Although the Charter does not explicitly attribute a right to privacy, the Supreme Court has developed the concept of privacy and recognized the right to privacy as a fundamental right enshrined in the Charter. For example, in Hunter v. Southam Inc., [1984] 2 S.C.R 145, the Supreme Court has interpreted sections 7 and 8 of the Charter as protecting against unreasonable invasion of privacy. Also, in addressing the liberty interest under section 7, the Supreme Court said that the "respect for individual privacy is an essential component of what it means to be free." (R. v. O'Connor, [1995] 4 S.C.R. 411) The right to privacy would be violated in situations where individuals have an expectation of privacy unless the intrusion is reasonable in the circumstances, minimally intrusive and authorized by law (R. v. M. (M.R.), [1998] 3 S.C.R. 393). [62] While the applicant has not argued a right to privacy as per sections 7 and 8 of the Charter, the Agency finds it necessary to address these two sections. [63] Section 7 of the Charter provides that "everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." As indicated by the Supreme Court in R. v. White, [1999] 2 S.C.R. 417, to find an infringement of section 7 of the Charter, there must be a real or imminent deprivation of life, liberty and security of the person that is contrary to the relevant principles of fundamental justice. In Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, the Supreme Court indicated that: [s]tate interference with bodily integrity and serious state-imposed psychological stress constitute a breach of an individual's security of the person [...] The words ‘serious state-imposed psychological stress' delineate two requirements that must be met in order for security of the person to be triggered. First, the psychological harm must be state imposed, meaning that the harm must result from the actions of the state. Second, the psychological prejudice must be serious. Not all forms of psychological prejudice caused by government will lead to automatic s. 7 violations. [64] With that in mind, can the Agency conclude that the level of stress associated with publishing the decision with the applicant's name is "serious"? As indicated in the Germain decision, to qualify under section 7 of the Charter, the stress suffered must be more than the "ordinary stresses and anxieties that a person of reasonable sensitivity would suffer as a result of being involved in open adjudicative process." The applicant was made aware right from the beginning of these proceedings that the process was a public one. This practice and the applicant's case do not resemble in any way the kind of proceedings in which rights were held to be violated under section 7 of the Charter. [65] As for section 8 of the Charter, it provides that "[e]veryone has the right to be secure against unreasonable search or seizure." It applies to how the information is gathered. "In order to trigger s. 8, the state must have engaged in either a search or seizure." (Germain decision, at para. 78) As there was no search or seizure done in the present case, the Agency finds that there is no section 8 Charter violation. [66] As indicated before, for the Agency to permit a departure from the "open court principle," the applicant must meet the following test, supported by well-grounded evidence: whether the order is necessary to prevent a serious risk to the important interest sought to be protected; and whether that interest is so important that the right to freedom of expression and more specifically, the open court principle should be disregarded. CTA | Decision No. 219-A-2009 https://www.otc-cta.gc.ca/eng/ruling/219-a-2009 9 of 10 691 [67] As indicated by the Supreme Court, in order to satisfy the first part of the test, the applicant must show that the risk in question is real and substantial. Second, the applicant must show that the important interest is one which can be expressed in terms of a public interest in confidentiality, where there is a general principle at stake. Finally, the Agency is required to consider not only whether reasonable alternatives are available to such an order but also to restrict the order as much as is reasonably possible while preserving the interest in question. [68] Even though the applicant was provided with opportunities, he did not provide any evidence that there is a real and substantive risk, nor did he provide evidence that there is an important interest which can be expressed in terms of a public interest in the order sought. Therefore, the Agency does not have to determine whether there is a need to preserve the interest in question. [69] As the applicant did not provide evidence to justify a derogation from the principle of open and accessible court proceedings, the Agency cannot grant the applicant's motion. Conclusion [70] The motion is denied. Members Geoffrey C. Hare Raymon J. Kaduck Date Modified : 2009-05-28 Top of Page Important Notices CTA | Decision No. 219-A-2009 https://www.otc-cta.gc.ca/eng/ruling/219-a-2009 10 of 10 692 Case Name: Tipple v. Deputy Head (Department of Public Works and Government Services) Between Douglas Tipple, Grievor, and Deputy Head (Department of Public Works and Government Services), Respondent, and Canadian Broadcasting Corporation, Applicant In the matter of an individual grievance referred to adjudication Public Service Staff Relations Act [2009] C.P.S.L.R.B. No. 110 [2009] C.R.T.F.P.C. no 110 2009 PSLRB 110 188 L.A.C. (4th) 166 PSLRB File No. 566-02-837 Canada Public Service Labour Relations Board Before: D.R. Quigley, adjudicator Heard: Ottawa, Ontario, June 26 and July 6, 2009. Decision: September 11, 2009. (18 paras.) Labour Arbitration -- Process and Procedure -- Arbitration -- Admission of public. Application by the Canadian Broadcasting Corporation ("CBC") for timely access to the exhibits entered into evidence in the hearing dealing with the employee's grievance related to his termination. The CBC argued that the open court principle applied to adjudication proceedings and, therefore sought immediate access to all exhibits entered in evidence during the course of the Page 1 693 hearing regarding the grievor's termination. HELD: Application allowed. The employer bore the burden of establishing the legitimacy of the limitation of the freedom of expression as provided by the Charter. In exercising his or her discretion, an adjudicator had to act within the boundaries set by the Charter. Granting the CBC access to all the exhibits, except those that were sealed, would not create a serious risk to the integrity or fairness of the remainder of the hearing. Tribunal Summary: Index terms: Continuing grievance Evidence Term employee Termination (non-disciplinary) Access to exhibits -- Final decision not yet rendered on merits -- Canadian Charter of Rights and Freedoms ("the Charter") -- Open court principle -- Burden of proof. The grievor grieved the termination of his employment and referred his grievance to adjudication -- in the course of the hearing, but after the evidence was closed, the media applied for timely access to the exhibits filed in evidence by the deputy head and the grievor -- the deputy head opposed the application -- the adjudicator found that, in exercising his discretion, he must act within the boundaries of the Charter and apply the Dagenais/Mentuck test developed by the Supreme Court of Canada -- he further found that the deputy head had not met its burden of establishing that denying the application was necessary to prevent a serious risk to an important interest in the context of adjudication -- the adjudicator found that, except for exhibits that had been sealed, granting the application would not create a serious risk to the integrity or fairness of the remainder of the hearing. Application allowed in part. Appearances: For the Grievor: Stephen Victor and David Cutler, counsel. For the Respondent: Michael Ciavaglia and Claudine Patry, counsel. For the Applicant: Edith Cody-Rice, counsel. Page 2 694 REASONS FOR DECISION I. Application before the adjudicator 1 This decision addresses an application filed on June 25, 2009 by the Canadian Broadcasting Corporation ("the CBC") in the course of an ongoing hearing dealing with a grievance filed by Douglas Tipple ("the grievor") against the termination of his employment. The CBC is requesting timely access to the exhibits entered in evidence by the grievor and the deputy head of the Department of Public Works and Government Services ("the deputy head"). In support of its application, the CBC provided the following affidavit: ... I Alison Crawford, make oath and say as follows: I am the justice reporter by the Canadian Broadcasting Corporation and am based in Ottawa, Ontario. I have been employed by the Canadian Broadcasting Corporation for thirteen years. For twelve of those years, I have bee covering courts throughout Canada. In the course of my current work, I report on the Supreme Court of Canada and the Federal Court and the Federal Court of Appeal of Canada I have also extensively covered trial courts in Canada. The courts during the course of trial, routinely provide access to text-based, photographic, audio and video exhibits at the time that an exhibit is entered in evidence. The access is provided shortly after an exhibit has been tendered in evidence, either at a break in the court proceedings, at the lunch break or at the end of the day. Page 3 695 Access to exhibits is provided even in cases in which there is an order excluding witnesses. I make this affidavit in support of an application for access to exhibits in the above-mentioned case and for no improper purpose ... [Sic throughout] II. Background 2 On October 11, 2005, the grievor was hired as a special advisor to the deputy head. By letter dated August 31, 2006, the grievor was informed by the deputy head that he was laid off immediately, pursuant to subsection 64(1) of the Public Service Employment Act, since his services were no longer required. 3 On September 5, 2006, the grievor filed a grievance alleging that he had been wrongfully dismissed and referred the grievance to adjudication on February 13, 2007. I was appointed to hear this matter and the hearing commenced on September 24, 2007. The hearing has continued on various dates throughout the remainder of the year, as well as in 2008 and up to July 2009, and the evidentiary portion of the hearing has now been completed. Exhibits G-10, G-11 and G-24 have been sealed in the course of the hearing; they are financial statements and income tax returns relating to the grievor. I will be hearing the parties' closing arguments on October 6, 2009. III. Arguments 4 As stated above, the CBC's application was filed on June 25, 2009. When the hearing resumed on June 26, 2009, counsel for the grievor stated that he did not wish to take a position regarding the application. Counsel for the deputy head raised an objection, stating that the exhibits should not be provided to the CBC until I render a final decision on the merits of the grievance. I adjourned the hearing until July 6, 2009, to allow the deputy head to prepare arguments to support its position. 5 The CBC's and deputy head's written submissions were filed before the oral hearing on July 6, 2009, when I heard their oral submissions. I have decided to reproduce those written arguments in full. A. For the CBC 6 On June 26, 2009, the CBC filed the following written arguments: ... Page 4 696 Principles Governing Access to Exhibits There is a presumptive right of access to exhibits that should only be curtailed with the greatest reluctance. Access to exhibits is recognized as a fundamental right attendant upon the constitutional value of openness in our courts and tribunals adjudicating the rights of Canadians. Discretionary power relative to the release of exhibits for viewing, copying and/or publication must be exercised in accordance with the Dagenais/Mentuck principles. An order restricting access to exhibits must be supported by an evidentiary foundation that the restriction is: 1. necessary to prevent a real and substantial risk to the fairness of the trial, be- cause reasonably available alternative measures will not prevent the risk and 2. that the salutary effects of the restriction outweigh the deleterious effect on freedom of expression and freedom of the press. Section 2(b) of the Canadian Charter of Rights and Freedoms guarantees the right of the media to gather and disseminate news. Any limitation on publication of the news, including restriction on access to exhibits, is a restriction on freedom of speech and of the press which must be justified under section 1 of the Canadian Charter of Rights and Freedoms as a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society. The media represent the public and have the right of access, copying and publication of exhibits. Argument Freedom of Expression Page 5 697 In the leading case, Edmonton Journal v. Alberta (Attorney General), 1989 CanLII 20 (S.C.C.) which concerned restrictions imposed by the Alberta Judicature Act on publishing details of matrimonial proceedings, the court, in overturning the provisions, stated per Cory J.: It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized. No doubt that was the reason why the framers of the Charter set forth s. 2(b) in absolute terms which distinguishes it, for example, from s. 8 of the Charter which guarantees the qualified right to be secure from unreasonable search. It seems that the rights enshrined in s. 2(b) should therefore only be restricted in the clearest of circumstances. It can be seen that freedom of expression is of fundamental importance to a democratic society. It is also essential to a democracy and crucial to the rule of law that the courts are seen to function openly. The press must be free to comment upon court proceedings to ensure that the courts are, in fact, seen by all to operate openly in the penetrating light of public scrutiny. There is another aspect to freedom of expression which was recognized by this Court in Ford v. Quebec (Attorney General), 1988 CanLII 19 (S.C.C.), [1988] 2 S.C.R. 712. There at p. 767 it was observed that freedom of expression "protects listeners as well as speakers". That is to say as listeners and readers, members of the public have a right to information pertaining to public institutions and particularly the courts. Here the press plays a fundamentally important role. It is exceedingly difficult for many, if not most, people to attend a court trial. Neither working couples nor mothers or fathers house-bound with young children, would find it possible to attend court. Those who cannot attend rely in large measure upon the press to inform them about court proceedings -- the nature of the evidence that was called, the arguments presented, the comments made by the trial judge -- in order to know not only what rights they may have, but how their problems might be dealt with in court. It is only through the press that most individuals can really learn of what is transpiring in the courts. They Page 6 698 as "listeners" or readers have a right to receive this information. Only then can they make an assessment of the institution. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information as to what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media. It is equally important for the press to be able to report upon and for the citizen to receive information pertaining to court documents. It was put in this way by Anne Elizabeth Cohen in her article "Access to Pretrial Documents Under the First Amendment" (1984), 84 Colum. L. Rev. 1813, at p. 1827: Access to pretrial documents furthers the same societal needs served by open trials and pretrial civil and criminal proceedings. Court officials can be better evaluated when their actions are seen by informed, rather than merely curious, spectators. [no pagination provided on CanLii] Public Right of Access to Exhibits The law concerning public right of access to documents related to a judicial action was expressed in the A.G. (Nova Scotia) v. MacIntyre, 1982 CanLII 14 (S.C.C.). In granting Mr. MacIntyre, a CBC journalist, access to executed search warrants, the Supreme Court, per Dickson, J., as he then was, stated: "At every stage the rule should be one of public accessibility and concomitant judicial accountability; all with a view to ensuring there is no abuse in the issue of search warrants, that once issued they are executed according to law, and finally that any evidence seized is dealt with according to law. A decision by the Crown not to prosecute, notwithstanding the finding of evidence appearing to establish the commission of a crime may, in some circumstances, raise issues of public importance. In my view, curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate Page 7 699 importance. One of these is the protection of the innocent. Undoubtedly every court has a supervisory and protecting power over its own records. Access can be denied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose. The presumption, however, is in favour of public access and the burden of contrary proof lies upon the person who would deny the exercise of the right." [pp. 186-187] This case was decided before the declaration of the Canadian Charter of Rights and Freedoms and therefore did not take it into account; however the position stated in MacIntyre was only strengthened by the inclusion of freedom of speech and of the press in s. 2(b) of the Charter. An important post-Charter case concerning the copying and broadcasting of trial exhibits is Re Regina And Lortie, 21 C.C.C. (3d) 436, a decision of the Quebec Court of Appeal. In this case, at the accused's trial on three counts of first degree murder the Crown had adduced as evidence video cassettes from cameras in the National Assembly where the killings had taken place. The cassettes had been produced without objection by the Speaker of the National Assembly. After the accused was convicted he appealed to the Court of Appeal. Pending that appeal a journalist was permitted to make copies of the tapes and now sought to broadcast the tapes. The court decided that the videotape cassettes should not be publicly shown pending the disposition of the accused's appeal, however, L'Heureux Dube J.A., as she then was, stated in her strong dissent at p. 456 -7: "The records of a court in criminal matters as well as the exhibits contained therein, are accessible to the general public including the media, for the purpose of consultation in so far as there is no court order restricting access to them either at the time of the production of the exhibits, or subsequently. The production of an exhibit in a criminal case in the absence of an order restricting access to it, eliminates its private document characteristic and puts it into the public domain, not because the document becomes the property of the public as would be the case, for example, of an archive document, but in the sense that it becomes accessible to the general public Page 8 700 for the purpose of consultation. A document, even one in the public domain, may be subject to restrictions for the purpose of its preservation (i.e., a prohibition against photographing or photocopying it as is the case for certain archive documents or works of art) or for the purposes of the administration of justice. On this last point, Dickson J. made the following comments (MacIntyre, supra, p. 149 C.C.C., p. 189 S.C.R): The "administration of justice" argument is based on the fear that certain persons will destroy evidence and thus deprive the police of the fruits of their search. Yet the appellant agrees these very individuals (i.e., those "directly interested") have a right to see the warrant, and the material upon which it is based, once it has been executed. The appellants do not argue for blanket confidentiality with respect to warrants. Logically, if those directly interested can see the warrant, a third party who has no interest in the case at all is not a threat to the administration of justice. By definition, he has no evidence that he can destroy. Concern for preserving evidence and for the effective administration of justice cannot justify excluding him. The evolution of the jurisprudence as well as the rules of practice adopted in Quebec enable me to state that, always subject to an order excluding it, the right of consultation includes the right to take notes and to copy or photocopy these documents. Once in possession of a copy of a document, the use that one can make of it is subject to the general rules of law which govern civil law obligations or contracts which is not an issue within the competence of this Court. If, in so doing, a person infringes copyright, there exist appropriate recourses under the Copyright Act, R.S.C. 1970, c. C-30. In addition, if, in so doing, one is guilty of defamation, there exist recourses in the civil courts to remedy it and so on. In these cases, the appropriate forum is not the present forum, and in any event, all recourses of this nature would be premature at the present stage. One cannot presume that these documents will be used in a prohibited manner, or one contrary to the statutes or regulations. Page 9 701 Publicity is the hallmark of justice, and trial in open Court is the instrument through which publicity is effectively attained. Closed Courts and secret trials bring back memories of the Court of Star Chamber, whose activities cast a dark stain on English law that was not either easily or quickly erased. No one wants a repetition of that or of anything tending towards that. Dickson J., in the MacIntyre case, supra, refers to this comment by Bentham (p. 144 C.C.C., p. 183 S.C.R.): "In the darkness of secrecy, sinister interest, and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and surest of all guards against improbity. It keeps the judge himself while trying under trial." (pp. 145-6 C.C.C., p. 185 S.C.R.): It is now well established, however, that covertness is the exception and openness the rule. Public confidence in the integrity of the Court system and understanding of the administration of justice are thereby fostered. As a general rule the sensibilities of the individuals involved are no basis for exclusion of the public from judicial proceedings. The following comments of Laurence J. in R. v. Wright, 8 T.L.R. 293, are apposite and were cited with approval by Duff J. in the Gazette Printing Co. v. Shallow (1909), 41 S.C.R. 339 at p. 359: "'Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of courts of justice should be universally known. The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings.'" The leading case is the decision of the House of Lords in Scott v. Scott, [1913] A.C. 417. In the later case of McPherson v. McPherson, [1936] Page 10 702 A.C. 177 at p. 200, Lord Blanesburgh, delivering the judgment of the Privy Council, referred to "publicity" as the "authentic hall-mark of judicial as distinct from administrative procedure". (p. 147 C.C.C., pp. 186-7 S.C.R.): In my view, curtailment of public accessibility can only be justified where there is present the need to protect social values of superordinate importance. One of these is the protection of the innocent". The seminal Supreme Court of Canada case, Dagenais v. Canadian Broadcasting Corp., 1994 CanLII 39 (S.C.C.), establishes that the Charter right of free expression is equal in value to the right to a fair hearing and therefore all measures must be taken to ensure the integrity of both. In that case the respondents, former and present members of a Catholic religious order, were charged with physical and sexual abuse of young boys in their care at training schools in Ontario. They applied to a superior court judge for an injunction restraining the CBC from broadcasting the mini-series The Boys of St-Vincent, a fictional account of sexual and physical abuse of children in a Catholic institution in Newfoundland, and from publishing in any media any information relating to the proposed broadcast of the program. At the time of the hearing, the trials of the four respondents were being heard or were scheduled to be heard in the Ontario Court of Justice (General Division) before a judge and jury... The superior court judge granted the injunction, prohibiting the broadcast of the mini-series anywhere in Canada until the end of the four trials, and granted an order prohibiting publication of the fact of the application, or any material relating to it. The Court of Appeal affirmed the decision to grant the injunction against the broadcast but limited its scope to Ontario and CBMT-TV in Montreal and reversed the order banning any publicity about the proposed broadcast and the very fact of the proceedings that gave rise to the publication ban. In the course of the judgment lifting the ban, the court, per Lamer C.J. stated: The pre-Charter common law rule governing publication bans emphasized the right to a fair trial over the free expression interests of those affected by the ban. In my view, the balance this rule strikes is inconsistent with the principles of the Charter, and in particular, the equal status given by the Charter to ss. 2(b) and 11(d). It would be inappropriate for the courts to continue to apply a common law rule that automatically favored the rights protected by s. 11(d) over those protected by s. 2(b). A hierarchical Page 11 703 approach to rights, which places some over others, must be avoided, both when interpreting the Charter and when developing the common law. When the protected rights of two individuals come into conflict, as can occur in the case of publication bans, Charter principles require a balance to be achieved that fully respects the importance of both sets of rights. It is open to this Court to "develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution": Dolphin Delivery, supra, [1986] 2 S.C.R. 573, at p. 603 (per McIntyre J.). I am, therefore, of the view that it is necessary to reformulate the common law rule governing the issuance of publication bans in a manner that reflects the principles of the Charter. Given that publication bans, by their very definition, curtail the freedom of expression of third parties, I believe that the common law rule must be adapted so as to require a consideration both of the objectives of a publication ban, and the proportionality of the ban to its effect on protected Charter rights. The modified rule may be stated as follows: A publication ban should only be ordered when: (a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) The salutary effects of the publication ban outweigh the deleterious effects to the free expression of those affected by the ban. If the ban fails to meet this standard (which clearly reflects the substance of the Oakes test applicable when assessing legislation under s. 1 of the Charter), then, in making the order, the judge committed an error of law and the challenge to the order on this basis should be successful. [pp 877-878] The Dagenais test was refined in the 2001 Supreme Court of Canada decision R. v. Mentuck, 2001 SCC 76 (CanLII). This case involved an attempt by poolice to suppress publication of the operational methods employed by the police in a "sting" operation. In refusing a publication ban, the court set out a three pronged test to determine if a publication ban was necessary. The first branch of Page 12 704 the analysis requires consideration of the necessity of the ban in relation to its object of protecting the proper administration of justice. The concept of "necessity" has several elements: 1. the risk in question must be well-grounded in the evidence and must pose a serious threat to the proper administration of justice; 2. "the proper administration of justice" should not be interpreted so widely as to keep secret a vast amount of enforcement information the disclosure of which would be compatible with the public interest; and 3. in order to reflect the minimal impairment branch of the Oakes test, the judge must consider whether reasonable alternatives are available, but he must also restrict the order as far as possible without sacrificing the prevention of the risk. The Alberta Court of Queen's Bench directly addressed the Charter issue in Muir v. Alberta [1995] A.J. No 1656. Action No. 8903 20759. This trial concerned the forced sterilization of individuals determined to be mentally unsound. In granting access to exhibits filed at the trial to members of the media and allowing photocopies and video reproductions to be made, the court provided a thorough rationale. Veit. J. stated the following principles in the decision: "Principles of access to exhibits (a) General principles 14 The principles that apply to access to court exhibits have long been established in the common law and have recently been amplified in contemporary case law. Because there is, essentially, among the parties and the applicants no dispute about the public and the media's right to access exhibits, only the briefest outline of the law is necessary. This brief outline is made necessary only because Alberta limits its acceptance of public and media access to exhibits to this case. The case law demonstrates that access to exhibits is the general rule, whether or not the parties agree to such access. 15 Access to exhibits is presumed in an open justice system; exhibits are part of the court "record". Public scrutiny of the judicial process is key to the democratic control of that branch of government. In Alberta, the then Page 13 705 Deputy Attorney General of Alberta sent a circular memo to the Bar in January 1984; one paragraph of that letter read as follows: Civil Trials: Exhibits, once entered on the Court record, are accessible for viewing by the public unless there is a statutory requirement of confidentiality, or the Court otherwise orders. Stevenson & Cote, at p. 1517 16 In addition, Canadians, including Canadian media, have a constitutionally protected right of "freedom of expression". In order to exercise this right, the media requires access to, and the right to publish, exhibits. 17 Therefore, any restriction on either the right of access, or the freedom to speak about what has been accessed, must be made only in the clearest of circumstances. Before imposing any limitation, the court must find that some value other than open justice or freedom of expression requires protection. 18 A restriction of the usual or general right of access to exhibits is not justifiable to protect a "speculative risk" to a societal value. The burden of persuasion is on those who seek to limit access or freedom of expression. Access should not be provided only to those who have a personal or specific interest in the exhibit. 19 Indeed, any court limitation of the right of access or the freedom of expression gives rise to the potential application of s. 2(b), and perhaps other sections, of the Charter. 20 Authority for these propositions can be found in: Edmonton Journal, Re Halifax Herald, [1995] N.S.J. No. 207; Dagenais; MacIntyre; Scott... (b) No difference between public and press 21 The media do not stand in any different position than the public: where Page 14 706 the public would be allowed access, the media is allowed access. 22 The media does not have any unique right of access; its rights are equal to, but not greater than, those of the public. 23 Where a young witness would be prevented from giving evidence if required to give that evidence in front of the public, the public may be prevented from being present in the courtroom. Often, in such cases, a representative of the media is allowed to stand in for the public, to be a surrogate for the public. In such situations the media are not accorded rights above those of the public generally; the media are merely exercising the public's right. 24 Authority for these propositions can be found in: Children's Aid, [1995] O.J. No. 148, Canadian Newspaper Co. Ltd, [1988] O.J. No. 126. (c) No difference between reading and publishing 25 While some cases have held that there is no distinction between the right of access and the right to replicate and duplicate, and while that result may generally be correct, those opinions do not appear to be addressing issues of ownership in exhibits, including ownership of copyright. The issue of ownership of exhibits is discussed below. 26 Except for issues involving ownership of the exhibits, the media, as agent of the public, ought to have not only access to the exhibits but the right to copy them as part of the report of proceedings. The right of access should usually be exercised contemporaneously with the trial proceeding itself. 27 Support for these propositions can be found in: Warren, [1995] N.W.T.J. No. 9, and Vickery. (d) No difference between document entered and document referred to by witness Page 15 707 28 If the exhibits are introduced into evidence and seen by the people present in the court, allowing media access to the exhibits facilitates the open justice concept by allowing those who could not be present to see the exhibits. 29 Even if the exhibits are not seen by the public present in the court, the exhibits constitute evidence on which the court - whether the court is a judge or judge and jury - will reach verdicts or make decisions. Therefore it is appropriate that the public have access to that evidence. Limitations on rights of access 32 As the parties and the applicants have acknowledged, the right to access to court exhibits is not unlimited. Because of the Supreme Court of Canada's recent decisions on the ranking of constitutional rights, I prefer to avoid the language of "superordinate" values used in some of the earlier case law. We should merely recognize that the courts are often faced with choosing from among competing values; when that happens, the courts must consider all of the circumstances of the case to determine, for that case, how the competing interests must be weighed. (a) Order limiting access is equivalent to publication ban 33 In this trial we have proceeded on the basis that a limitation of access to exhibits is equivalent to a publication ban. Any order limiting access to exhibits must therefore comply with the principles set out by the Supreme Court of Canada in Dagenais. In a 2002 decision, CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region) (Registrar) et al., 2002 CanLII 41398 (ON C.A.)the Ontario Court of Appeal allowed an appeal from the decision of an application judge who had held that the court could grant access to exhibits only where the requirement of open justice had not been met. In this case, he ruled that both the preliminary hearing and the sentencing hearing were open to the public, so the requirements of open justice were met. He held that the court had no power to Page 16 708 act simply for the purpose of public access. Having based his decision on jurisdictional concerns, he declined to make a finding on the merits of the applicant's entitlement to the order sought. In allowing the appeal and referring the matter back for decision, Goudge J.A. relied upon the presumption of accessibility to exhibits and decided that jurisdiction does not end when documents are transferred by court to police at the end of the proceedings. Documents remain an integral part of the court records. He stated: "[13] The central issue in this appeal is the extent of the court's power or jurisdiction over its own records. To determine whether it extends to the circumstances of this case, it is important to remember that the court's jurisdiction over its own records is anchored in the vital public policy favouring public access to the workings of the courts. [14] This was made clear in the seminal case of A.G. of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175, 132 D.L.R. (3d) 385. Speaking for the majority of the court, Dickson J. upheld public access to a search warrant and the information upon which it had been issued once the warrant had been successfully executed. In doing so he eloquently described the importance of public accessibility at every stage of the process. The rule should be one of public accessibility, to be departed from only if necessary to protect what he called "social values of superordinate importance", such as the protection of the innocent. As he indicated, this approach fosters both public confidence in the integrity of the court system and public understanding of the administration of justice. At p. 189 S.C.R. of his reasons, he concluded with the following: Undoubtedly every court has a supervisory and protecting power over its own records. Access can be denied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose. The presumption, however, is in favour of public access and the burden of contrary proof lies upon the person who would deny the exercise of the right. [15] Of the two important objectives served by public access referred to in MacIntyre, the court in that case emphasized judicial accountability and the consequent public confidence that results from public access to the workings of the courts. Page 17 709 [16] In subsequent cases the court has made equally clear how important public access is to the second objective, namely a greater public understanding of the administration of justice. Moreover, the court has underlined how important the media are in providing the medium of communication to achieve this end. For example, in Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480, 139 D.L.R. (4th) 385, the court discussed the value of public access as a means of enhancing public understanding. La Forest J. said this at pp. 496-97 S.C.R.: Openness permits public access to information about the courts, which in turn permits the public to discuss and put forward opinions and criticisms of court practices and proceedings. It is by ensuring the press access to the courts that it is enabled to comment on court proceedings and thus inform the public of what is transpiring in the courts. [17] In MacIntyre, the court made clear that the strong presumption in favour of public access to court records should be displaced only with the greatest reluctance and only because of considerations of very significant importance such as the protection of the innocent. In Vickery v. Nova Scotia Supreme Court (Prothonotary), [1991] 1 S.C.R. 671, 64 C.C.C. (3d) 65, the court further elaborated on the factors to be considered in deciding whether public access should be given. [18] The issue in Vickery was whether a journalist should have access to audio and video tapes filed as exhibits at a criminal trial given that the appeal court had held that they were inadmissible, had reversed the conviction and acquitted the accused. [19] Speaking for the majority, Stevenson J. concluded that access to the tapes was properly denied because the privacy interest of the accused as a person acquitted of a crime outweighed the public right of access to exhibits which had been held to be inadmissible against him. In reaching this conclusion, Stevenson J. reiterated the fundamental proposition in Page 18 710 MacIntyre that there should be maximum accessibility but not to the extent of harming the innocent. [20] He went on to outline several other significant factors to be considered in deciding whether to accord access. He referred to the nature of exhibits as a part of the court "record" including, particularly, the proprietary interest that non-parties may have in them, and suggested that this may cut against unfettered access once the exhibits have served their purpose in the court process. He made clear that the court had the right to inquire into the use to be made of access and to regulate that use by securing appropriate undertakings to protect competing interests. He described as another important consideration whether the exhibits had been open to public scrutiny at trial. And he indicated that once the judicial proceedings had been concluded different considerations might govern, for example where the subsequent release of selected exhibits would create risks of partiality and unfairness. [21] In the end, he decided that the privacy interest of the innocent person who had been acquitted outweighed the access interest of the journalist who sought to view and disseminate the tapes. [22] I think it is clear from this jurisprudence that the court's jurisdiction to determine access to court records (including exhibits) rests on the premise that public accessibility should be curtailed only with the greatest reluctance, taking into account the need to protect the innocent and the other considerations described in Vickery. It is also clear that this jurisdiction does not vanish simply because it is shown that these exhibits were filed in open court. As Vickery indicates, this is not conclusive, but merely one factor for the court to consider in determining whether to depart from the presumption of public accessibility. Indeed, in the present case, where there was a publication ban during the trial, it is perhaps a factor of diminished importance. [23] Thus, I conclude that the application judge erred in determining that he had no power to grant the appellant's request for access simply because these exhibits had been filed at the preliminary hearing and then forwarded to the sentencing court, both of which were open to the public. Page 19 711 [24] The Toronto Police Service also seeks to defend the decision appealed from on the basis that the exhibits sought by the appellant are no longer in the possession of the court. [25] While in both MacIntyre and Vickery the relevant court records remained in the court's possession, in my view there can be no principled basis for terminating the court's jurisdiction to provide access to exhibits just because they have left the possession of the court. They do not lose their character as exhibits simply because they have been physically transferred to the Toronto Police Service. They remain an integral part of the court record in the Lorenz case. [26] Moreover, the objectives that are served by the presumption of public accessibility -- namely, judicial accountability and public understanding of the administration of justice -- continue to be important even when possession passes from the court. Fostering judicial accountability in a particular case and enhancing public understanding of that case do not cease when the exhibits are transferred to the police. The policy objectives served by the court's jurisdiction to provide public access to its records thus strongly suggest that, whatever its ultimate reach, this jurisdiction does not end when the records pass out of the court's possession. [27] As with the proprietary interest in exhibits referred to in Vickery, it may be that where they have passed into the control of another, there is a possessory interest to be considered in deciding on public access. In a case like this, however, where the exhibits have simply been returned to the police a few months after the court proceeding and the application for access has been promptly made, that interest would not seem to be significant. [28] Finally, the Toronto Police Service argues that the existence of the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56 precludes the court from exercising its common law jurisdiction to order access to court records. The respondent says that this legislation permits the appellant to apply for access to the exhibits it seeks and sets up criteria for evaluating such a request. Page 20 712 [29] In my view, the simple answer to this argument is that the regime set up under this legislation has an entirely different purpose. It is designed to regulate access to private information which, but for the regime, would not otherwise be available to the public. By contrast, the jurisdiction which the appellant seeks to engage is over court records which the common law treats as presumptively accessible to the public. There is nothing in the legislation that suggests either explicitly or by necessary implication that the court's jurisdiction at common law is being curtailed or removed. This is hardly surprising since the legislation is designed for such a different purpose. The regime it establishes is simply one which co-exists with the court's jurisdiction. It does not replace it. [30] In summary, therefore, I conclude that the court has jurisdiction to order public access to the court exhibits sought by the appellant." The Dagenais/Mentuck Test applies to access to Exhibits. In the recent Supreme Court of Canada case, Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 (CanLII), search warrants relating to alleged violations of provincial legislation were issued. The Crown brought an ex parte application for an order sealing the search warrants, the informations used to obtain the warrants and related documents, claiming that public disclosure of the material could identify a confidential informant and could interfere with the ongoing criminal investigation. A court order directed that the warrants and informations be sealed. Various media outlets brought a motion for certiorari and mandamus in the Superior Court, which quashed the sealing order and ordered that the documents be made public except to the extent that the contents of the informations could disclose the identity of a confidential informant. Applying the Dagenais/Mentuck test, the Court of Appeal affirmed the decision to quash the sealing order but edited materials more extensively to protect informant's identity. The court per Fish. J., stated: In any constitutional climate, the administration of justice thrives on exposure to light - and withers under a cloud of secrecy. Page 21 713 That lesson of history is enshrined in the Canadian Charter of Rights and Freedoms. Section 2(b) of the Charter guarantees, in more comprehensive terms, freedom of communication and freedom of expression. These fundamental and closely related freedoms both depend for their vitality on public access to information of public interest. What goes on in the courts ought therefore to be, and manifestly is, of central concern to Canadians. The freedoms I have mentioned, though fundamental, are by no means absolute. Under certain conditions, public access to confidential or sensitive information related to court proceedings will endanger and not protect the integrity of our system of justice. A temporary shield will in some cases suffice; in others, permanent protection is warranted. Competing claims related to court proceedings necessarily involve an exercise in judicial discretion. It is now well established that court proceedings are presumptively "open" in Canada. Public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration. This criterion has come to be known as the Dagenais/Mentuck test, after the decisions of this Court in which the governing principles were established and refined. The issue in this case is whether that test, developed in the context of publication bans at the time of trial, applies as well at the pre-charge or "investigative stage" of criminal proceedings. More particularly, whether it applies to "sealing orders" concerning search warrants and the informations upon which their issuance was judicially authorized. The Court of Appeal for Ontario held that it does and the Crown now appeals against that decision. I would dismiss the appeal. In my view, the Dagenais/Mentuck test applies to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings. Any other conclusion appears to me inconsistent with an unbroken line of authority in this Court over the past two decades. And it would tend to undermine the open court Page 22 714 principle inextricably incorporated into the core values of s. 2(b) of the Charter. [para 1-7] It is thus clear from the case law that accessibility to exhibits is the rule and denial of access the exception. As stated by Veit J, the denial of access to exhibits is a form of publication ban. The decisions also establish that the media is the representative, that is, the eyes and ears of the public who cannot attend a court proceeding and that in normal circumstances, the media should be allowed not only access to but the right to copy exhibits. The burden of preventing access lies upon the party that would deny the access and the only justifiable reason for preventing access is to protect values of superordinate importance. Even in the case of the potential release of compromising videotapes of an individual whose conviction was overturned, three members of the Supreme Court of Canada argued for their release. Finally, the Court of Appeal of Ontario has confirmed that the right of access to exhibits does not end with the end of the trial itself. The documents remain an integral part of the court record. In our respectful submission, the practice of preventing access to exhibits until the decision of an adjudicator is rendered amounts to a ban on publication until the end of the hearing. If the goal is to prevent current and future witnesses from reviewing the contents of exhibits in the news, there are other ways to achieve this goal. Any witness currently being examined will have seen the exhibit and cannot be prejudiced by its publication. Future witnesses, even where there is an order excluding witnesses, may be directed by the adjudicator not to read, listen to or view media reports concerning the matter at hand, just as juries are so instructed in trials. Reporters and the public may attend open hearings and report all aspects, including the name of the exhibit being examined and details of the questioning. Access to the exhibits themselves assists the accuracy of the reporting, without otherwise prejudicing the rights of the parties or the administration of justice. ... [Sic throughout] 7 The CBC filed the following supplementary written arguments on June 26, 2009: ... This supplementary brief include two additional cases on the following points of law: Page 23 715 - In camera hearings are tantamount to a publication ban - Access to exhibits must be provided in a timely basis. In Camera Hearings Are Tantamount To A Publication Ban. In Named Person v. Vancouver Sun, [2007] 2 S.C.R. 253, 2007 SCC 43, The appellant Named Person informed the judge, during an in camera portion of extradition proceedings, that he was a confidential police informer, and on that basis requested some disclosure from the appellant Attorney General, who was acting on behalf of the state requesting the Named Person's extradition. At a subsequent hearing, media representatives applied for an order that they be allowed to review the documents prepared by an amicus curiae upon filing undertakings of non-disclosure. The judge allowed the application and ordered that counsel for the respondents as well as specific representatives of each respondent be allowed to review the amicus documents on each individual filing an undertaking of confidentiality. The Supreme Court of Canada overturned that order on the basis that informer privilege is extremely broad and powerful. Once a trial judge is satisfied that the privilege exists, a complete and total bar on any disclosure of the informer's identity applies. All information which might tend to identify the informer is protected by the privilege, and neither the Crown nor the court has any discretion to disclose this information in any proceeding, at any time. The court remanded the case to the extradition judge to decide what information may be disclosed to media counsel and the media representatives In the course of its judgment, per Basterache J, the court stated however: 96 It will now be necessary to turn to a problem relating to the definition of the rights flowing from the open court principle. The recognition of the right of the press to inform the public on court proceedings as a corollary to the public's right to open courts tends to lead to the view that these two rights are one and the same. However, a conceptual distinction must be maintained between them in order to deal with the difficulties that the application of this principle gives rise to in the re- lationships between these rights and other rights without taking the relevant values into consideration. For example, in certain situations, a judge might consider it ap- propriate - or might be required by legislation - to order a publication ban but not to order that the proceedings be held in camera. Such an order would restrict the right of the press to report on what happens in court. However, it would not in- fringe the more general right to open courts. In this sense, an order that proceed- ings be held in camera is more drastic because, in practice, it constitutes a publica- tion ban, whereas the converse is not true. Page 24 716 97 The difference between the two types of orders can be seen in Canadian Newspa- pers, in which this Court ruled on the constitutionality of a statutory provision com- pelling the trial judge to order a publication ban in certain circumstances in sexual assault cases. On that occasion, the Court agreed that such a provision limits the right to freedom of expression guaranteed by s. 2(b) of the Charter. It nevertheless held that the provision was justified under s. 1 of the Charter because, inter alia, it did not require the trial judge to proceed in camera but, on the contrary, allowed the media to be present at the hearing and report on the conduct of the hearing and the facts of the case, provided that this information did not tend to identify the com- plainant. 98 Canadian Broadcasting Corp. v. New Brunswick also illustrates the difference between the two types of orders and it shows clearly that courts should exercise caution before ordering that proceedings be heard in camera. In that case, which concerned sexual assaults committed against young female persons, the trial judge had ordered under s. 486(1) of the Criminal Code that the media and the public be excluded from a part of the sentencing proceeding dealing with the specific acts committed by the accused. The order remained in effect for only 20 minutes. Never- theless, this Court decided that the trial judge should not have excluded the public in this manner, as there was insufficient evidence to support a concern for undue hardship to the accused or the complainants. The Court reached this conclusion because, inter alia, of the fact that the victims' privacy was already protected by a publication ban. The Media Must Be Given Timely Access To Exhibits. In R. v. White, 2005 ABCA 435 (CanLII), the accused sought an order banning publication of the evidence, memoranda of argument, and the oral submissions made during a hearing for judicial interim release. The judge reviewing that order for judicial interim release convened a hearing to hear submissions from the media. At the end of the hearing the judge left the publication ban in place because s. 517 of the Criminal Code placed a mandatory ban on publication of this material which the judge felt would be rendered nugatory, if he, on judicial review of an order for interim release, were to lift the ban. In the course of his decision, however, he noted: [5] In my opinion, transparency enhances the public's knowledge of the judicial process, thereby promoting respect for the administration of justice. It follows that an application for a publication ban should be heard in open court and not in-camera. The latter will be the rare exception. That is because proceeding in private insulates the decision from meaningful appellate review, there being no readily available public record of the Page 25 717 submissions made, nor any accessible recorded reasons for granting the publication ban. [6] News is a perishable commodity. Because "[n]ews, as the word implies, involves something new - something fresh." (Triple Five Corp. v. United Western Communications Ltd. (1994), 19 Alta. L.R. (3d) 153 at 155 (C.A.)), unjustified delay in permitting full public access will have a deleterious effect on the ability of the media to report, and, in the result, for the public to be informed. Contemporaneous access to court documents and processes allows the media to fulfil their legitimate role as the eyes and ears of the public. As Kerans, J.A. noted in Triple Five Corp.,"time [for the media] is always of the essence." In a later application to revoke bail for Mr. White, R. v. White, 2006 ABCA 65 (CanLII), the court found that while there was a statutory ban on publication of bail hearing proceedings if requested by the accused, there was no such limitation on bail application reviews in the Court of Appeal. The appeal court decided that there was no justification for a ban on publication of proceedings in this case. Conclusion As stated in the Brief of Law, the rule is that tribunals hold hearings in public and permit public reporting of all aspects of the hearing. Any limitation on that publicity is the exception. Such measures as bans on publications and holding hearings "in camera" are exceptional and should be carefully considered, applying the Dagenais/Mentuck test. In courts the practice has been to provide access to exhibits contemporaneous with their entry into evidence [See affidavit of Alison Crawford] and the case law indicates that this should be the case. News is a perishable commodity and unjustified delay in permitting full public access has a deleterious effect on the ability of the media to report, and, in the result, for the public to be informed. ... [Sic throughout] 8 The CBC submitted the following case law in support of its arguments: Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Nova Scotia (Attorney General) v. MacIntyre, Page 26 718 [1982] 1 S.C.R. 175; R. v. Lortie (1985), 21 C.C.C. (3d) 436 (Qc C.A.); Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76; Muir v. Alberta, [1995] A.J. No 1656 (Alta. Q.B.) (QL); CTV Television Inc. v. Ontario Superior Court of Justice (Toronto Region), (2002), 59 O.R. (3d) 18 (Ont. C.A.); Toronto Star Newspaper Ltd. v. Ontario, 2005 SCC 41; Named Person v. Vancouver Sun, 2007 SCC 43; R. v. White, 2005 ABCA 435; and R. v. White, 2006 ABCA 65. B. For the deputy head 9 On July 3, 2009, the deputy head filed the following written arguments: ... OVERVIEW 1. It is arguable that the principle of open court applies to the Public Service Labour Relations Board (the "PSLRB") when adjudicating grievances such as the one brought by the grievor, Mr. Douglas Tipple. However, administrative tribunals are different than courts and this may warrant flexibility in the way the open court principle applies. Thus, as master of its own procedure, it is for the PSLRB to de- cide whether to provide access to the documents entered as exhibits after a decision is rendered and not infringe on the rights guaranteed by section 2b) of the Charter. FACTS 2. The grievor was hired as a Special Advisor to the Deputy Minister of Public Works and Government Services Canada ("PWGSC") in October, 2005. This was a term appointment for a period of three years made pursuant to section 8 of the Public Service Employment Act ("PSEA"). 3. By letter dated August 31, 2006, the grievor was advised by the Deputy Minister that his services were no longer be required as it was decided to integrate the func- tion of his position with those of the Assistant Deputy Minister, Real Property. As a result, due to the discontinuance of the grievor's functions, he was laid off pursuant to section 64(1) of the PSEA. 4. The circumstances surrounding the termination of the grievor's term employment with PWGSC have been the subject of a hearing before the PSLRB. Evidence was heared throughout 2007, 2008 and 2009 and recently concluded with the testimony of the grievor on June 29, 2009, leaving the closing arguments for a later date. 5. On June 25, 2009, the Canadian Broadcasting Corporation ("CBC") brought a mo- Page 27 719 tion to obtain access to the evidence entered as exhibits in the course of the hearing before the PSLRB. ISSUES 6. The motion brought by CBC raises the following issues: i. Does the open court principle protected by section 2(b) of the Charter require administrative tribunals to make available to the public the exhibits presented in evidence? ii. Does an administrative tribunal have a discretion to refuse to release the exhibits until a decision is rendered? POSITION 7. Regardless of whether the open court principle and section 2(b) of the Charter ap- plies, all courts and administrative tribunals have the discretion to make exhibits available or not and how and when they will be available. Some of the factors that can be taken into account when exercising this discretion include the continuity of exhibits, their integrity, the administrative burden, the presence of the press during a hearing and whether making copies would unfairly prejudice any of the parties. SUBMISSIONS A) Applicability of the Open Court Principle to Administrative Tribunals 8. Traditionally, and subject to contrary statutory direction, there is no general com- mon law requirement that administrative tribunals conduct their proceedings in public. Where the enabling legislation is silent on this point of procedure, a stat- utory decision-maker is the master of its own proceedings and the matter of a pub- lic versus in camera hearing is left to its discretion. 9. Recently, the common law relating to the open court principle has been largely overtaken by s. 2(b) of the Canadian Charter of Rights and Freedoms. Section 2(b) Page 28 720 of the Charter protects the right to freedom of thought, belief, opinion and expres- sion, including freedom of the press and other media of communication. The courts have held that s. 2(b) guarantees the right of members of the public to receive in- formation pertaining to all judicial proceedings, subject to overriding public in- terests. However, the case law is divided as to the applicability of the open court principle under section 2(b) of the Charter to administrative tribunals in general. 10. In Pacific Press Ltd. v. Canada (Minister of Employment and Immigration), MacGuigan J.A. concluded that the open court principle under s. 2(b) of the Charter applied to all statutory tribunals exercising judicial or quasi-judicial functions. In determining whether a tribunal performs a judicial or quasi-judicial function, he re- lied on the four-part test set out in the Supreme Court's decision in M.N.R. v. Coopers and Lybrand. 11. The reasoning in Pacific Press did not find unanimity in subsequent cases and in the absence of clear guidance from the Supreme Court of Canada, courts are wrestling with the suggestion that the open court principle applies to all administrative tribunals performing judicial or quasi-judicial functions. 12. The unresolved issue is whether it is sufficient that the administrative tribunal is of a judicial or quasi-judicial nature or whether some additional finding is necessary such as a finding that the matter before the tribunal is of sufficient public importance that openness is warranted. 13. The PSLRB considers itself a quasi-judicial tribunal and as such would appear to be bound by the constitutionally protected open court principle. 14. In addition, since the PSLRB is responsible for, among other things, the interpreta- tion of collective agreements and arbitral award, the adjudication of disciplinary ac- tions of public servants and their demotion or termination for unsatisfactory per- formance or for any other non-disciplinary reasons, it is arguable that public ser- vants have an interest in the way in which disputes over grievances are resolved by the PSLRB. There is therefore an argument to be made that the adjudication of grievances before the PSLRB is of sufficient public importance to warrant the ap- plication of the open court principle. B) Whether CBC is Entitled to Exhibits Before a Decision is Rendered 15. As mentioned above, an administrative tribunal is master of its own proceedings and where the enabling legislation is silent on a point of procedure, the tribunal may de- termine the procedure to be followed. 16. There is nothing in the PSLRB's enabling legislation or regulations preventing it from determining how it will proceed in releasing exhibits to the public and media. 17. Thus, on the surface it appears that the PSLRB would be acting within its jurisdic- tional limit if it ordered that the exhibits be released to the media after it renders a decision. However, superimposed upon this general rule of administrative law is sec- Page 29 721 tion 2(b) of the Charter. 18. While section 2(b) of the Charter and the open court principle would appear to apply to the PSLRB, the degree to which the principle applies to this tribunal may not be the same as before a court. Administrative tribunals come in all shapes and sizes with some performing policy functions while others act as quasi-judicial bodies and conduct hearings. A degree of flexibility is therefore warranted in how they give ex- pression to the open court principle. Requiring administrative decision-makers to meet the open court principle in exactly the same manner as a court could poten- tially make their proceedings unmanageable. 19. In this case, it is arguable that the open court principle has been met since the hear- ing has been open to the public and access to the exhibits will be possible at the latest once a decision is rendered. The media has been present during most of the presentation of the evidence and has been taking notes throughout. The media has a right to disseminate information to the public and the public has the right to receive it. There is, however, no authority that dictates that the information must be released in precisely the same form in which it was produced and presented during the hear- ing, or that the public have a right to copies of exhibits. CONCLUSION 20. The PSLRB is master of its own procedure subject to its enabling legislation and the Charter. Given that the case law suggests that the open court principle does not ne- cessarily apply to administrative decision-makers in the same manner as it does to courts and given that, it is arguable that PSLRB has a certain discretion in the man- ner it will release the exhibits to the public and the media. ... [Sic throughout] 10 The deputy head submitted the following precedents: Brunswick News Inc. v. New Brunswick (Attorney General) 2008 NBQB 289; Minister of National Revenue v. Coopers and Lybrand, [1979] 1 S.C.R. 495; Canadian Broadcasting Corp. v. Summerside (City) (1999), 173 Nfld. & P.E.I.R. 56 (P.E.I.S.C. (T.D.)); Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; Gordon v. Canada (Minister of National Defence), 2005 FC 335; Kirchmeir v. Edmonton (City), 2001 ABQB 107; Pacific Press Ltd. v. Canada (Minister of Employment and Immigration), [1991] 2 F.C. 327 (C.A.); Prassad v. Canada (Minister of Employment and Immigration), [1989] 1 S.C.R. 560; R. v. Canadian Broadcasting Corporation, 2007 CanLII 21124 (Ont. Sup. Ct. J.); Robertson v. Edmonton (City) Police Service, 2004 ABQB 519; Southam Inc. v. Canada (Attorney General) (1997), 36 O.R. (3d) 721 (Ont. Ct. (G.D.)); Southam Inc. v. Canada (Minister of Employment and Immigration), [1987] 3 F.C. 329 (T.D.); Re Vancouver Sun, 2004 SCC 43; MacAulay and Sprague, Practice and Procedure Before Administrative Tribunals (2004), para 16.3; and Adjudication Page 30 722 Services (as of July 3, 2009), online: PSLRB http://pslrb-crtfp.gc.ca/adjudication/intro_e.asp. IV. Reasons 11 The CBC argues that the open court principle applies to adjudication proceedings and, therefore requests immediate access to all exhibits entered in evidence during the course of the hearing regarding the grievor's termination. 12 The deputy head, at paragraph 18 of its written arguments, concedes that paragraph 2(b) of the Charter and the open court principle appears to apply to these proceedings. However, the deputy head, relying on the administrative law principle that an adjudicator is the master of his or her own proceedure, requests that I exercise my discretion not to grant the CBC access to the exhibits until I render a final decision on the merits of the grievance. The deputy head argues that the open court principle does not necessarily apply to administrative tribunals in the same fashion as it does to the courts. 13 In exercising his or her discretion, an adjudicator must act within the boundaries set by the Charter. As the Supreme Court of Canada found in Toronto Star Newspapers Ltd., such boundaries, known as the Dagenais/Mentuck test, apply with regard to public access to legal proceedings. At paragraphs 4, 5 and 7, the Court wrote the following: ... 4 Competing claims related to court proceedings necessarily involve an exercise in judicial discretion. It is now well established that court proceedings are presumptively "open" in Canada. Public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration. 5 This criterion has come to be known as the Dagenais/Mentuck test, after the decisions of this Court in which the governing principles were established and refined... ... 7 ... In my view, the Dagenais/Mentuck test applies to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings. Any other conclusion appears to me inconsistent with an unbroken line of authority in this Court over the past two decades. And it would tend to undermine the open court principle inextricably incorporated into the core values of s. 2(b) of the Charter. Page 31 723 [Emphasis in the original] 14 In Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, the Supreme Court of Canada had reformulated the Dagenais/Mentuck test as follows: ... (a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and (b) the salutary effects of the ... order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings. ... In this case, however, the second part of the Dagenais/Mentuck test has no practical application, as the deputy head has not alleged that the right to information protected by the Charter interferes with another important right or interest requiring protection. 15 The party seeking to restrict the public's access to these proceedings bears the burden of establishing the legitimacy of the limitation sought: MacIntyre. For the purpose of this decision, the deputy head must provide a sufficient evidentiary basis to establish that not granting access to the exhibits until I render a final decision on the merits of the grievance is necessary in order to prevent a serious risk to an important interest in the context of adjudication. It has produced no evidence to that effect or alluded to any risk of that kind. 16 As previously stated, the evidentiary portion of the hearing has been completed and the hearing will resume on October 6, 2009, to hear the parties' closing arguments. I therefore find that granting the CBC access to all the exhibits, except those that have been sealed, will not create a serious risk to the integrity or fairness of the remainder of the hearing. 17 For all of the above reasons, I make the following order: V. Order 18 I declare that the CBC is entitled to immediate access to all the exhibits, except Exhibits G-10, G-11 and G-24 that have been sealed. cp/e/qlaim/qlaxw/qlhcs/qlcas Page 32 724 Indexed as: Toronto Star Newspapers Ltd. v. Ontario Her Majesty The Queen, appellant; v. Toronto Star Newspapers Ltd., Canadian Broadcasting Corporation and Sun Media Corporation, respondents, and Canadian Association of Journalists, intervener. [2005] 2 S.C.R. 188 [2005] S.C.J. No. 41 2005 SCC 41 File No.: 30113. Supreme Court of Canada Heard: February 9, 2005; Judgment: June 29, 2005. Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ. (43 paras.) Appeal From: ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO Catchwords: Constitutional law -- Charter of Rights -- Freedom of expression -- Freedom of the press -- Dagenais/Mentuck test -- Search warrants -- Crown requesting order sealing warrants and informations used to obtain warrants -- Whether Dagenais/Mentuck test applicable to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings. Page 1 725 Criminal law -- Provincial offences -- Search warrants -- Sealing orders -- Open court principle -- Protection of confidential informant -- Crown requesting order sealing warrants and informations used to obtain warrants -- Whether Dagenais/Mentuck test applicable to sealing orders concerning search warrants and informations upon which issuance of warrants was judicially authorized -- Whether Dagenais/Mentuck test applicable at pre-charge or "investigative stage" of criminal proceedings. [page189] Summary: Search warrants relating to alleged violations of provincial legislation were issued. The Crown brought an ex parte application for an order sealing the search warrants, the informations used to obtain the warrants and related documents, claiming that public disclosure of the material could identify a confidential informant and could interfere with the ongoing criminal investigation. A court order directed that the warrants and informations be sealed. Various media outlets brought a motion for certiorari and mandamus in the Superior Court, which quashed the sealing order and ordered that the documents be made public except to the extent that the contents of the informations could disclose the identity of a confidential informant. Applying the Dagenais/Mentuck test, the Court of Appeal affirmed the decision to quash the sealing order but edited materials more extensively to protect informant's identity. Held: The appeal should be dismissed. The Dagenais/Mentuck test applies to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings, including orders to seal search warrant materials made upon application by the Crown. Court proceedings are presumptively "open" in Canada and public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration. Though applicable at every stage of the judicial process, the Dagenais/Mentuck test must be applied in a flexible and contextual manner, and regard must be had to the circumstances in which a sealing order is sought by the Crown, or by others with a real and demonstrated interest in delaying public disclosure. [para. 4] [paras. 7-8] [paras. 30-31] Here, the Crown has not demonstrated that the flexible Dagenais/Mentuck test as applied to search warrant materials is unworkable in practice, nor has it shown that the Court of Appeal failed to adopt a "contextual" approach. The evidence brought by the Crown in support of its application to delay access amounted to a generalized assertion of possible disadvantage to an ongoing investigation. A party seeking to limit public access to legal proceedings must rely on more than a generalized assertion that publicity could compromise [page190] investigative efficacy. The party Page 2 726 must, at the very least, allege a serious and specific risk to the integrity of the criminal investigation. The Crown has not discharged its burden in this case. [paras. 9-10] [paras. 34-35] [para. 39] Cases Cited Applied: Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835; R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76; referred to: Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175; Vancouver Sun (Re), [2004] 2 S.C.R. 332, 2004 SCC 43; National Post Co. v. Ontario (2003), 176 C.C.C. (3d) 432; R. v. Eurocopter Canada Ltd., [2001] O.J. No. 1591 (QL); Flahiff v. Bonin, [1998] R.J.Q. 327; Toronto Star Newspapers Ltd. v. Ontario, [2000] O.J. No. 2398 (QL). Statutes and Regulations Cited Canadian Charter of Rights and Freedoms, s. 2(b). Criminal Code, R.S.C. 1985, c. C-46, s. 487.3. Provincial Offences Act, R.S.O. 1990, c. P.33. History and Disposition: APPEAL from a judgment of the Ontario Court of Appeal (Doherty, Rosenberg and Borins JJ.A.) (2003), 67 O.R. (3d) 577 (sub nom. R. v. Toronto Star Newspapers Ltd.), 232 D.L.R. (4th) 217, 178 C.C.C. (3d) 349, 17 C.R. (6th) 392, 110 C.R.R. (2d) 288, 178 O.A.C. 60, [2003] O.J. No. 4006 (QL), allowing the Crown's appeal, to a very limited extent, from an order of McGarry J. quashing the sealing order of Livingstone J. Appeal dismissed. Counsel: Scott C. Hutchison and Melissa Ragsdale, for the appellant. Paul B. Schabas and Ryder Gilliland, for the respondents. Written submissions only by John Norris, for the intervener. The judgment of the Court was delivered by [page191] Page 3 727 FISH J.:-- I 1 In any constitutional climate, the administration of justice thrives on exposure to light -- and withers under a cloud of secrecy. 2 That lesson of history is enshrined in the Canadian Charter of Rights and Freedoms. Section 2(b) of the Charter guarantees, in more comprehensive terms, freedom of communication and freedom of expression. These fundamental and closely related freedoms both depend for their vitality on public access to information of public interest. What goes on in the courts ought therefore to be, and manifestly is, of central concern to Canadians. 3 The freedoms I have mentioned, though fundamental, are by no means absolute. Under certain conditions, public access to confidential or sensitive information related to court proceedings will endanger and not protect the integrity of our system of justice. A temporary shield will in some cases suffice; in others, permanent protection is warranted. 4 Competing claims related to court proceedings necessarily involve an exercise in judicial discretion. It is now well established that court proceedings are presumptively "open" in Canada. Public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration. 5 This criterion has come to be known as the Dagenais/Mentuck test, after the decisions of this Court in which the governing principles were established and refined. The issue in this case is whether that test, developed in the context of publication bans at the time of trial, applies as well at the pre-charge or "investigative stage" of criminal proceedings. More particularly, whether it applies to "sealing orders" concerning search warrants and the [page192] informations upon which their issuance was judicially authorized. 6 The Court of Appeal for Ontario held that it does and the Crown now appeals against that decision. 7 I would dismiss the appeal. In my view, the Dagenais/Mentuck test applies to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceedings. Any other conclusion appears to me inconsistent with an unbroken line of authority in this Court over the past two decades. And it would tend to undermine the open court principle inextricably incorporated into the core values of s. 2(b) of the Charter. 8 The Dagenais/Mentuck test, though applicable at every stage of the judicial process, was from the outset meant to be applied in a flexible and contextual manner. A serious risk to the administration of justice at the investigative stage, for example, will often involve considerations Page 4 728 that have become irrelevant by the time of trial. On the other hand, the perceived risk may be more difficult to demonstrate in a concrete manner at that early stage. Where a sealing order is at that stage solicited for a brief period only, this factor alone may well invite caution in opting for full and immediate disclosure. 9 Even then, however, a party seeking to limit public access to legal proceedings must rely on more than a generalized assertion that publicity could compromise investigative efficacy. If such a generalized assertion were sufficient to support a sealing order, the presumption would favour secrecy rather than openness, a plainly unacceptable result. [page193] 10 In this case, the evidence brought by the Crown in support of its application to delay access amounted to a generalized assertion of possible disadvantage to an ongoing investigation. The Court of Appeal accordingly held that the Crown had not discharged its burden. As mentioned earlier, I would not interfere with that finding and I propose, accordingly, that we dismiss the present appeal. II 11 The relevant facts were fully and accurately set out in these terms by Doherty J.A. in the Court of Appeal for Ontario ((2003), 67 O.R. (3d) 577): On August 20, 2003, a justice of the peace issued six search warrants for various locations linked to the business of Aylmer Meat Packers Inc. ("Aylmer"). The informations sworn to obtain the warrants were identical. The warrants were obtained under the provisions of the Provincial Offences Act, R.S.O. 1990, c. P.33 and related to alleged violations of provincial legislation regulating the slaughter of cattle. The informations were sworn by Roger Weber, an agricultural investigator with the Ministry of Natural Resources. The warrants were executed on August 21 and 22, 2003. On about August 26, 2003, the investigation by the Ministry of Natural Resources into the operation of Aylmer became the subject of widespread media reports. The suitability for human consumption of meat slaughtered and processed by Aylmer became a matter of public concern. On about August 27, 2003, the Ontario Provincial Police commenced a fraud investigation into the business affairs of Aylmer. The officers involved in that investigation were advised that Inspector Weber had applied for and Page 5 729 obtained the search warrants described above. On September 2, 2003, the Crown brought an ex parte application in open court in the Ontario Court of Justice for an order sealing the search warrants, the informations used to obtain the warrants and related documents. The Crown claimed that public disclosure of the material could identify a confidential informant and could interfere with the ongoing criminal investigation. [page194] Justice Livingstone made an order directing that the warrants and informations were to be sealed along with the affidavit of Detective Sergeant Andre Clelland, dated August 30, 2003 filed in support of the application for a sealing order and a letter, dated September 2, 2003, from Roger Weber indicating that the Ministry of Natural Resources took no objection to the application. The sealing order was to expire December 2, 2003. The Clelland affidavit and Inspector Weber's letter were subsequently made part of the public record on the consent of the Crown. The Toronto Star Newspapers Limited and other media outlets (respondents) brought a motion for certiorari and mandamus in the Superior Court. That application proceeded before McGarry J. on September 15 and 16, 2003. On September 24, 2003, McGarry J. released reasons quashing the sealing order and directing that the documents should be made public except to the extent that the contents of the informations could disclose the identity of a confidential informant. McGarry J. edited one of the informations to delete references to material that could identify the confidential informant and told counsel that the edited version would be made available to the respondents unless the Crown appealed within two days... . [paras. 1-6] 12 The Crown did, indeed, appeal -- but with marginal success. 13 The Court of Appeal for Ontario held that Livingstone J. had exceeded her jurisdiction by refusing to grant a brief adjournment to allow counsel for the media to attend and make submissions on the application for a sealing order. Speaking for the court, Doherty J.A. found that the media can legitimately be expected to play an important role on applications to prohibit their access, and that of the public they serve, to court records and court proceedings. "There was no good reason", he stated, "to deny The London Free Press an opportunity to make submissions" (para. 15). This Page 6 730 amounted, in his view, to a denial of natural justice and resulted in a loss of jurisdiction. I find it unnecessary to express a decided view on this branch of the matter, since it is not in issue before us, and find it sufficient for present purposes to refer to the guidelines on notice to the media and media standing set out in Dagenais v. Canadian [page195] Broadcasting Corp., [1994] 3 S.C.R. 835, particularly at pp. 868-69 and 890-91. 14 Doherty J.A. next addressed the merits of the request for a sealing order. Applying this Court's decision in R. v. Mentuck, [2001] 3 S.C.R. 442, 2001 SCC 76, he concluded that the Crown had not displaced the presumption that judicial proceedings are open and public. Like McGarry J., Doherty J.A. recognized that the materials had to be edited to exclude information that could reveal the identity of the confidential informant and the editing he found appropriate was "somewhat more extensive than that done by McGarry J." (para. 28). 15 The order of the Court of Appeal has now become final and the factual basis for a sealing order has evaporated with the passage of time. In the absence of a stay, the edited material was released on October 29, 2003, and the proceedings have to that extent become moot. 16 The Crown nonetheless pursues its appeal to this Court with respect to the underlying question of law: What is the governing test on an application to delay public access to search warrant materials that would otherwise become accessible upon execution of the search warrant? 17 Essentially, the Crown contends that the Court of Appeal erred in law in applying the "stringent" Dagenais/Mentuck test without taking into account the particular characteristics and circumstances of the pre-charge, investigative phase of the proceedings. III 18 Once a search warrant is executed, the warrant and the information upon which it is issued must be made available to the public unless an applicant seeking a sealing order can demonstrate that public [page196] access would subvert the ends of justice: Attorney General of Nova Scotia v. MacIntyre, [1982] 1 S.C.R. 175. "[W]hat should be sought", it was held in MacIntyre, "is maximum accountability and accessibility but not to the extent of harming the innocent or of impairing the efficiency of the search warrant as a weapon in society's never-ending fight against crime" (Dickson J., as he then was, speaking for the majority, at p. 184). 19 MacIntyre was not decided under the Charter. The Court was nonetheless alert in that case to the principles of openness and accountability in judicial proceedings that are now subsumed under the Charter's guarantee of freedom of expression and of the press. 20 Search warrants are obtained ex parte and in camera, and generally executed before any charges have been laid. The Crown had contended in MacIntyre that they ought therefore to be presumptively shrouded in secrecy in order to preserve the integrity of the ongoing investigation. The Court found instead that the presumption of openness was effectively rebutted until the search Page 7 731 warrant was executed -- but not thereafter. In the words of Dickson J.: ... the force of the 'administration of justice' argument abates once the warrant has been executed, i.e. after entry and search. There is thereafter a "diminished interest in confidentiality" as the purposes of the policy of secrecy are largely, if not entirely, accomplished. The need for continued concealment virtually disappears... . The curtailment of the traditionally uninhibited accessibility of the public to the working of the courts should be undertaken with the greatest reluctance. [pp. 188-89] 21 After a search warrant has been executed, openness was to be presumptively favoured. The party seeking to deny public access thereafter was bound to prove that disclosure would subvert the ends of justice. [page197] 22 These principles, as they apply in the criminal investigative context, were subsequently adopted by Parliament and codified in s. 487.3 of the Criminal Code, R.S.C. 1985, c. C-46. That provision does not govern this case, since our concern here is with warrants issued under the Provincial Offences Act of Ontario, R.S.O. 1990, c. P.33. It nonetheless provides a useful reference point since it encapsulates in statutory form the common law that governs, in the absence of valid legislation to the contrary, throughout Canada. 23 Section 487.3(2) is of particular relevance to this case. It contemplates a sealing order on the ground that the ends of justice would be subverted, in that disclosure of the information would compromise the nature and extent of an ongoing investigation. That is what the Crown argued here. It is doubtless a proper ground for a sealing order with respect to an information used to obtain a provincial warrant and not only to informations under the Criminal Code. In either case, however, the ground must not just be asserted in the abstract; it must be supported by particularized grounds related to the investigation that is said to be imperilled. And that, as we shall see, is what Doherty J.A. found to be lacking here. 24 Since the advent of the Charter, the Court has had occasion to consider discretionary actions which limit the openness of judicial proceedings in other contexts. The governing principles were first set out in Dagenais. 25 In that case, four accused sought a ban on publication of a television mini-series, The Boys of St. Vincent, which was fictional in appearance -- but strikingly similar in fact -- to the subject matter of their trial. Writing for a majority of the Court, Lamer C.J. held that a ban should only be imposed where alternative measures cannot prevent the serious risk to the interests at stake and, even then, only to the extent found by the Court to be necessary to prevent a real and substantial risk to the Page 8 732 fairness of the trial. In addition, a ban should only be ordered where its [page198] salutary effects outweigh its negative impact on the freedom of expression of those affected by the ban. Here, too, the presumption was said to favour openness, and the party seeking a restriction on disclosure was therefore required to justify the solicited limitation on freedom of expression. 26 The Dagenais test was reaffirmed but somewhat reformulated in Mentuck, where the Crown sought a ban on publication of the names and identities of undercover officers and on the investigative techniques they had used. The Court held in that case that discretionary action to limit freedom of expression in relation to judicial proceedings encompasses a broad variety of interests and that a publication ban should only be ordered when: (a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk; and (b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice. [para. 32] 27 Iacobucci J., writing for the Court, noted that the "risk" in the first prong of the analysis must be real, substantial, and well grounded in the evidence: "it is a serious danger sought to be avoided that is required, not a substantial benefit or advantage to the administration of justice sought to be obtained" (para. 34). 28 The Dagenais/Mentuck test, as it has since come to be known, has been applied to the exercise of discretion to limit freedom of expression and of the press in a variety of legal settings. And this Court has recently held that the test applies to [page199] all discretionary actions which have that limiting effect: While the test was developed in the context of publication bans, it is equally applicable to all discretionary actions by a trial judge to limit freedom of expression by the press during judicial proceedings. Discretion must be exercised in accordance with the Charter, whether it arises under the common law, as is the case with a publication ban ...; is authorized by statute, for example under s. 486(1) of the Criminal Code which allows the exclusion of the public from judicial proceedings in certain circumstances (Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [[1996] 3 S.C.R. 480], at para. 69); or under rules of court, for example, a confidentiality order (Sierra Club of Canada v. Canada (Minister of Finance), [2002] 2 S.C.R. 522, 2002 SCC 41). (Vancouver Sun (Re), [2004] 2 S.C.R. 332, 2004 SCC 43, at para. 31) Page 9 733 29 Finally, in Vancouver Sun, the Court expressly endorsed the reasons of Dickson J. in MacIntyre and emphasized that the presumption of openness extends to the pre-trial stage of judicial proceedings. "The open court principle", it was held, "is inextricably linked to the freedom of expression protected by s. 2(b) of the Charter and advances the core values therein" (para. 26). It therefore applies at every stage of proceedings (paras. 23-27). 30 The Crown now argues that the open court principle embodied in the Dagenais/Mentuck test ought not to be applied when the Crown seeks to seal search warrant application materials. This argument is doomed to failure by more than two decades of unwavering decisions in this Court: the Dagenais/Mentuck test has repeatedly and consistently been applied to all discretionary judicial orders limiting the openness of judicial proceedings. [page200] 31 It hardly follows, however, that the Dagenais/Mentuck test should be applied mechanistically. Regard must always be had to the circumstances in which a sealing order is sought by the Crown, or by others with a real and demonstrated interest in delaying public disclosure. The test, though applicable at all stages, is a flexible and contextual one. Courts have thus tailored it to fit a variety of discretionary actions, such as confidentiality orders, judicial investigative hearings, and Crown-initiated applications for publication bans. 32 In Vancouver Sun, the Court recognized that the evidentiary burden on an application to hold an investigative hearing in camera cannot be subject to the same stringent standard as applications for a publication ban at trial: Even though the evidence may reveal little more than reasonable expectations, this is often all that can be expected at that stage of the process and the presiding judge, applying the Dagenais/Mentuck test in a contextual manner, would be entitled to proceed on the basis of evidence that satisfies him or her that publicity would unduly impair the proper administration of justice. [para. 43] 33 Similar considerations apply to other applications to limit openness at the investigative stage of the judicial process. IV 34 The Crown has not demonstrated, on this appeal, that the flexible Dagenais/Mentuck test as applied to search warrant materials is unworkable in practice. The respondents, on the other hand, have drawn our attention to several cases in which the test was effectively and reasonably applied. Sealing orders or partial sealing orders were in fact granted, for example, in National Post Co. v. Ontario (2003), 176 C.C.C. (3d) 432 (Ont. S.C.J.); R. v. Eurocopter Canada Ltd., [2001] O.J. No. Page 10 734 1591 (QL) (S.C.J.); Flahiff v. Bonin, [1998] R.J.Q. 327 (C.A.); and Toronto Star [page201] Newspapers Ltd. v. Ontario, [2000] O.J. No. 2398 (QL) (S.C.J.). 35 Nor has the Crown satisfied us that Doherty J.A. failed to adopt a "contextual" approach to the order sought in this case. 36 In support of its application, the Crown relied exclusively on the affidavit of a police officer who asserted his belief, "based on [his] involvement in this investigation that the release of the Warrants, Informations to Obtain and other documents would interfere with the integrity of the ongoing police investigation" (Appellant's Record, at p. 70). The officer stated that, should the contents of the information become public, witnesses could be fixed with information from sources other than their personal knowledge and expressed his opinion "that the release of the details contained in the Informations to Obtain [the search warrants] has the potential to make it more difficult for the Ontario Provincial Police to gather the best evidence in respect of its investigation" (Appellant's Record, at p. 72). 37 Doherty J.A. rejected these broad assertions for two reasons. 38 First, he found that they amounted to a "general proposition that pre-trial publication of the details of a police investigation risks the tainting of statements taken from potential witnesses" (para. 26). In Doherty J.A.'s view, if that general proposition were sufficient to obtain a sealing order, ... the presumptive rule would favour secrecy and not openness prior to trial. A general assertion that public disclosure may distract from the ability of the police to get at the truth by tainting a potential witness's statement is no more valid than the equally general and contrary assertion that public disclosure enhances the ability of the police to get at the truth by causing concerned citizens to come forward with valuable information. [para. 26] [page202] 39 Second, Doherty J.A. found that the affiant's concern, for which he offered no specific basis, amounted to a mere assertion that "the police might have an advantage in questioning some individuals if those individuals [are] unaware of the details of the police investigation" (para. 27). In oral argument before this Court, counsel for the Crown referred to this as the "advantage of surprise". In this regard, Doherty J.A. noted Iacobucci J.'s conclusion in Mentuck, at para. 34, that access to court documents cannot be denied solely for the purpose of giving law enforcement officers an investigative advantage; rather, the party seeking confidentiality must at the very least allege a serious and specific risk to the integrity of the criminal investigation. Page 11 735 40 Finally, the Crown submits that Doherty J.A. applied a "stringent" standard -- presumably, an excessively stringent standard -- in assessing the merits of the sealing application. This complaint is unfounded. 41 Quite properly, Doherty J.A. emphasized the importance of freedom of expression and of the press, and noted that applications to intrude on that freedom must be "subject to close scrutiny and meet rigorous standards" (para. 19). Ultimately, however, he rejected the Crown's claim in this instance because it rested entirely on a general assertion that publicity can compromise investigative integrity. 42 At no point in his reasons did Doherty J.A. demand or require a high degree of predictive certainty in the Crown's evidence of necessity. V 43 For all of these reasons, I propose that we dismiss the appeal, with costs to the respondents, on a party-and-party basis. [page203] Solicitors: Solicitor for the appellant: Ministry of the Attorney General, Toronto. Solicitors for the respondents: Blake, Cassels & Graydon, Toronto. Solicitors for the intervener: Ruby & Edwardh, Toronto. Page 12 736 Case Name: Toronto Star Newspapers Ltd. v. Canada Between Toronto Star Newspapers Limited and Kassim Mohamed, Plaintiffs, and Her Majesty the Queen in Right of Canada, Defendant [2007] F.C.J. No. 165 [2007] A.C.F. no 165 2007 FC 128 2007 CF 128 [2007] 4 F.C.R. 434 [2007] 4 R.C.F. 434 308 F.T.R. 196 278 D.L.R. (4th) 99 151 C.R.R. (2d) 74 155 A.C.W.S. (3d) 564 Docket T-739-06 Federal Court Toronto, Ontario Lutfy C.J. Heard: September 25 and October 18, 2006. Judgment: February 5, 2007. (92 paras.) Page 1 737 Civil evidence -- Documentary evidence -- Publication bans and confidentiality or sealing orders -- Motion by Toronto Star challenging constitutionality of ss. 38.04(4), 38.11(1) and 38.12(2) of Canada Evidence Act -- Attorney General launched proceeding pursuant to s. 38 of Canada Evidence Act to have Federal Court determine whether secret information in litigation should be disclosed -- Impugned sections denied Toronto Star access to s. 38 application and all court records associated with proceeding although all parties were present and no secret information was disclosed during such private sessions -- Motion allowed -- Infringement under s. 2(b) of Charter not justified by s. 1 -- Impugned sections read down -- Canada Evidence Act, ss. 38.04(4), 38.11(1), 38.12(2). Constitutional law -- Constitutional validity of legislation -- Motion by Toronto Star challenging constitutionality of ss. 38.04(4), 38.11(1) and 38.12(2) of Canada Evidence Act -- Attorney General launched proceeding pursuant to s. 38 of Canada Evidence Act to have Federal Court determine whether secret information in litigation should be disclosed -- Impugned sections denied Toronto Star access to s. 38 application and all court records associated with proceeding although all parties were present and no secret information was disclosed during such private sessions -- Motion allowed -- Infringement under s. 2(b) of Charter not justified by s. 1 -- Impugned sections read down -- Canada Evidence Act, ss. 38.04(4), 38.11(1), 38.12(2). Constitutional law -- Canadian Charter of Rights and Freedoms -- Reasonable limits -- Oakes test -- Proportionality test -- Fundamental freedoms -- Freedom of expression -- Motion by Toronto Star challenging constitutionality of ss. 38.04(4), 38.11(1) and 38.12(2) of Canada Evidence Act -- Attorney General launched proceeding pursuant to s. 38 of Canada Evidence Act to have Federal Court determine whether secret information in litigation should be disclosed -- Impugned sections denied Toronto Star access to s. 38 application and all court records associated with proceeding although all parties were present and no secret information was disclosed during such private sessions -- Motion allowed -- Infringement under s. 2(b) of Charter not justified by s. 1 -- Impugned sections read down -- Canada Evidence Act, ss. 38.04(4), 38.11(1), 38.12(2). Motion by Toronto Star challenging constitutionality of ss. 38.04(4), 38.11(1) and 38.12(2) of Canada Evidence Act requiring all application hearings under s. 38 to be heard in private and requiring confidentiality to be maintained in respect of all applications and court records relating to s. 38 proceedings -- Plaintiff Mohamed sued Attorney General for damages due to disclosure of plaintiff's personal information to foreign security agencies -- Attorney General was informed that secret information was about to be disclosed -- Attorney General launched proceeding pursuant to s. 38 to have Federal Court determine whether secret information should be disclosed -- Existence of s. 38 proceeding disclosed to the public -- Proceeding was private, as opposed to ex-parte, and in presence of all parties -- No secret information disclosed at private sessions under s. 38 -- Combined effect of ss. 38.04(4) and 38.12(2) was to deny Toronto Star access to s. 38 application and all court records associated with proceeding although all parties were present at proceeding and no secret information was disclosed during such sessions -- HELD: Motion allowed -- Sections 38.04(4), Page 2 738 38.11(1), and 38.12(2) of Canada Evidence Act infringed Toronto Star's rights under s. 2(b) of Charter -- Infringements not justified under s. 1 as impugned provisions did not meet minimum impairment requirement of Oakes test -- Where court sessions and court records were available to all parties in litigation, these confidentiality requirements infringed unjustifiably on open court principle -- Mandatory requirement to exclude public from portions of review hearing when there existed no risk that national security information or foreign confidences could be disclosed was overbroad -- Impugned sections read down to apply only to ex pate representations provided for in s. 38.11(2) -- Open court principle required media access and timely publication -- In exceptional event where exclusion of public might be justified even when all parties were present, ss 38.04(4) and 38.12(1) provided Court with discretionary authority to adopt such measures as warranted by circumstances to protect confidentiality of secret information. Statutes, Regulations and Rules Cited: Anti-Terrorism Act, S.C. 2001, c. 41, s. 38 Canada Evidence Act, R.S.C. 1985, c. C-5, s. 38, s. 38.02(1) (c), s. 38.03, s. 38.04(2)(c), s. 38.04(4), s. 38.04(5)(a), s. 38.04(5)(c), s. 38.06(1), s. 38.06(3), s. 38.09, s. 38.1, s. 38.11(1), s. 38.12(2), s. 38.131 Canadian Charter of Rights and Freedoms, 1982, s. 1, s. 2(b) Federal Courts Act, R.S.C. 1985, c. F-7, s. 17(3)(b) Federal Courts Rules, Rule 26, Rule 29, Rule 151 Privacy Act, R.S.C. 1985, c. P-21, s. 46, s. 51, s. 51(2)(a), s. 51(3) Counsel: Paul Schabas, Ryder Gilliland and Rahool Agarwalm for the Plaintiff - Toronto Star Newspapers Ltd. Lorne Waldman, for Plaintiff - Kassim Mohamed. Alain Préfontaine, for Defendant. REASONS FOR ORDER 1 LUTFY C.J.:-- For some twenty-five years now, hearings in the Federal Court have been held Page 3 739 in private for the determination of whether national security information should be disclosed, despite the objection of the Attorney General of Canada. The requirement for closed hearings applies even for those segments of the litigation where all the parties are present and no secret information is being reviewed by the Court. This proceeding is the first constitutional challenge to the mandatory statutory provisions requiring this degree of secrecy. 2 Where the court sessions and the court records are available to all parties in the litigation, I have concluded that the confidentiality requirements infringe unjustifiably on the open court principle. The appropriate constitutional remedy is to read down the impugned statutory provisions to apply only to court sessions and court records when secret information is in play. The effect of this decision is that court sessions at which all of the parties are present and court records available to all of the parties are presumptively open to the public. Factual Background 3 In September 2004, Kassim Mohamed sued the Attorney General of Canada for damages and other relief, alleging that both the Royal Canadian Mounted Police and the Canadian Security Intelligence Service disclosed his personal information to foreign security agencies. In Mr. Mohamed's view, this disclosure resulted in his two-week detention by Egyptian authorities. His action is pending in the Federal Court under court file no. T-1666-04 (the civil action). 4 During the discovery process in the civil action, the Attorney General of Canada was notified that "potentially injurious information" or "sensitive information" as defined in section 38 of the Canada Evidence Act, R.S.1985, c. C-5 (secret information) was about to be disclosed. Secret information, in general terms, is information relating to international relations, national defence or national security. 5 On January 5, 2006, after receiving this notification, the Attorney General of Canada launched a designated proceeding pursuant to sections 38 and following of the Act (sometimes referred to collectively as "section 38") to have the Federal Court determine whether the secret information should be disclosed: Canada (Attorney General of Canada) v. Mohamed, court file no. DES-1-06 (the designated proceeding). 6 On January 25, 2006, the Attorney General of Canada authorized counsel for Mr. Mohamed to disclose the existence of the designated proceeding. As early as August 2005, the Federal Court's publicly accessible recorded entries of the civil action disclosed that the parties intended to seek relief under section 38. In effect, the Attorney General's authorization merely confirmed what was publicly available four months earlier. 7 Without the Attorney General's authorization, which was made under section 38.03, the disclosure of the fact that an application had been made to the Federal Court would have been prohibited by paragraph 38.02(1)(c). Page 4 740 8 As the result of this authorization, the Toronto Star Newspapers Limited (Toronto Star), which had been monitoring and reporting the civil action, was informed of the designated proceeding. 9 On February 23, 2006, the Toronto Star advised the Federal Court of its intention to challenge the confidentiality provisions to which section 38 designated proceedings are subject. If the constitutional challenge were made within the designated proceeding, section 38 may have required the argument to be heard in private. Each of the parties and the Court preferred that the issue be adjudicated in open court. 10 On April 19, 2006, counsel for the three parties agreed that the Toronto Star's constitutional challenge would be adjudicated as a question of law pursuant to paragraph 17(3)(b) of the Federal Courts Act, R.S. 1985, c. F-7. 11 On April 26, 2006, this proceeding was launched. The consent of the parties to proceed in this fashion removed the Toronto Star's intervention from the secrecy of section 38 proceedings for adjudication in a public forum. The Court is grateful for the ingenuity and the cooperation of counsel in having this constitutional challenge resolved in open court. 12 The first day of the public hearings took place on September 25, 2006. The second day, on October 18, 2006, focused on remedies. The Impugned Provisions of Section 38 13 The plaintiffs, the Toronto Star and Mr. Mohamed, challenge the constitutionality of three provisions of the Canada Evidence Act (the impugned provisions). 14 First, the plaintiffs challenge subsection 38.11(1), which requires that section 38 application hearings be heard in private: "A hearing under subsection 38.04(5)...shall be heard in private..." ("Les audiences prévues au paragraphe 38.04(5)...sont tenues à huis clos..."). 15 Second, the plaintiffs also impugn the constitutionality of two related provisions. 16 Subsection 38.04(4) requires that confidentiality be maintained in respect of all applications made pursuant to section 38: "An application under this section is confidential. ..." ("Toute demande présentée en application du présent article est confidentielle. ..."). 17 Similarly, subsection 38.12(2) requires that confidentiality be maintained in respect of all court records related to a section 38 proceeding: "The court records relating to the hearing, appeal or review are confidential. ..." ("Le dossier ayant trait à l'audience, à l'appel ou à l'examen est confidentiel. ..."). 18 The combined effect of subsections 38.04(4) and 38.12(2) is to deny the Toronto Star access to the section 38 application and all court records associated with the designated proceeding. Page 5 741 19 This proceeding has focused on the application and the hearing in the Federal Court. One would expect that the outcome of the constitutional challenge here would be the same for "appeals" in the Federal Court of Appeal and the Supreme Court of Canada, under sections 38.09 and 38.1 respectively, and for "reviews" under section 38.131. However, the parties' agreed statement of facts, their memoranda of law and their oral submissions focused only on applications and hearings in the Federal Court. In the absence of an evidentiary record for proceedings in the appellate courts, this decision will be limited to the Federal Court. 20 The impugned provisions as well as other relevant provisions of section 38 of the Canada Evidence Act are set out in full in Schedule A of these reasons. The plaintiffs are of the view that other provisions of section 38 may be unconstitutional. However, this proceeding is limited to the three impugned provisions. 21 In an earlier decision, I noted the difficulties presented by the scope of paragraph 38.02(1)(c), which prohibits disclosing the existence of a section 38 application: Ottawa Citizen Group v. Canada (Attorney General of Canada), [2004] F.C.J. No. 1303, 2004 FC 1052 at paragraphs 35-40. I acknowledged the possibility of an exceptional case where the disclosure of the existence of a section 38 application may cause injury to legitimate government interests or perhaps even sensitive private interests. However, I added that the absence of judicial discretion in paragraph 38.02(1)(c) was, in my view, problematic. In reiterating my concern, I refer to paragraphs 38 and 40 of the decision: There may be an exceptional case where the secrecy envisaged in section 38.02 may be warranted. In the more usual situation, however, where secret information is in issue, the necessity of a section 38 proceeding is made known publicly before the person presiding over the tribunal or court hearing. The Federal Court is required by section 38 to keep secret a fact which has been referred publicly in the court or tribunal from which the proceeding emanates. It is unlikely that Parliament could have intended that the drafting of section 38 would result in such a consequence. [...] It is unusual that a party to the litigation should be the sole arbiter to authorize the disclosure of information which is or should be public. A court should be seen as having reasonable control over its proceedings in the situation I have just described. 22 The decision in this proceeding is premised on the fact that the existence of the designated proceeding has been made public. Until the constitutionality of the paragraph 38.02(1)(c) has been challenged and determined, these reasons are intended to apply only to those situations where Page 6 742 knowledge of the existence of the section 38 proceeding has been disclosed to the public. The Issues 23 As set out in the parties' agreed statement of facts, this proceeding raises the following constitutional questions (at paragraph 22): 1. Does s. 38.04(4) of the Canada Evidence Act constitute an infringement of the Toronto Star's rights as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms ("Charter")? If so, is the infringement justified under s. 1 of the Charter? 2. Does the portion of s. 38.11(1) of the Canada Evidence Act which states that "a hearing under subsection 38.04(5) or an appeal or review of an order made under any of subsections 38.06(1) to (3) shall be heard in private" constitute an infringement of the Toronto Star's rights as guaranteed by s. 2(b) of the Charter. If so, is the infringement justified under s. 1 of the Charter? 3. Does the first sentence of s. 38.12(2) of the Canada Evidence Act constitute an infringement of the Toronto Star's rights as guaranteed by s. 2(b) of the Charter? If so, is the infringement justified under s. 1 of the Charter? 24 The Attorney General of Canada agrees with the plaintiffs that the impugned provisions violate the open court principle, a core democratic value inextricably linked to the fundamental freedoms of expression and of the media protected under section 2(b) of the Canadian Charter of Rights and Freedoms. 25 Accordingly, the issues to be decided in this proceeding include: - Are the impugned provisions saved under section 1 of the Charter? - If not, what is the appropriate constitutional remedy? 26 Put differently and in general terms, what is the justification for requiring closed hearings and maintaining the confidentiality of court documents where no secret information is disclosed? A review of the Federal Court's experience with section 38 may be useful. 27 An earlier version of section 38, which had been part of the Canada Evidence Act since 1982, also required that applications be heard in private. It is not apparent that this requirement was always respected where all parties were present and no secret information was being discussed: Mulroney v. Canada (Attorney General), [1997] F.C.J. No. 1 (QL) (T.D.) at paragraph 12; Moumdjian v. Canada (Security Intelligence Review Committee), [1995] F.C.J. No. 619 (QL) (T.D.) at paragraph 5. Page 7 743 28 Section 38 was substantially amended in the Anti-Terrorism Act, S.C. 2001, c. 41. Schedule B to these reasons lists the section 38 proceedings which have been publicly disclosed under the new provisions. Each has been case managed. Proceedings under section 38 since the 2001 amendments 29 A section 38 application is to be heard by the Chief Justice of the Federal Court or a judge of that Court designated by the Chief Justice. This provision has existed since 1982. 30 All hearings in a section 38 proceeding are closed to the public: subsection 38.11(1). Case management conferences are also conducted in private. 31 The exclusion of the public from all sessions of a section 38 proceeding is consistent with the secrecy envisaged by paragraph 38.02(1)(c), which prohibits the disclosure of "... the fact that an application is made to the Federal Court under subsection 38.04 ..." ("... le fait qu'une demande a été présentée à la Cour fédérale au titre de l'article 38.04 ..."). 32 There are always two types of hearings in a section 38 proceeding: sessions at which all of the parties are present but which are nonetheless closed to the public (private sessions) and sessions which take place in the absence of one or more of the parties (ex parte sessions). 33 There is no secret information disclosed during the private sessions. The records available at the private sessions include the notice of application, the affidavits and the memoranda of law exchanged between the parties. None of these documents contains secret information. However, the combined effect of subsections 38.04(4) and 38.12(2) is to prevent the public from accessing and publicizing the contents of these documents. 34 Ex parte representations are available as of right to the Attorney General of Canada and with leave of the presiding judge to every other party: subsection 38.11(2). The constitutionality of the requirement that these ex parte sessions are closed to the public has not been challenged in this proceeding. 35 In every section 38 application, the Attorney General of Canada will make representations to the Court to confirm the prohibition of disclosure of the secret information in issue. Usually, the Attorney General of Canada will be the only party before the Court when these representations are made. However, if another party to the proceeding has possession of the same secret information in issue, it is possible for that party to be present when the ex parte submissions are made by the Attorney General of Canada. 36 The procedures followed in a typical section 38 proceeding are set out in some detail in the parties' agreed statement of facts, the relevant portions of which should be readily available on the public record: Page 8 744 5. The [Attorney General (A.G.)] advises that the procedure that is used in s. 38.04 Canada Evidence Act applications follows a number of customary steps, as follows. 6. First, following the issuance of a notice of application pursuant to s. 38.04, the A.G. files a motion for directions pursuant to paragraph 38.04(5)(a) of the Canada Evidence Act. In his motion material, the A.G. identifies all parties or witnesses whose interests he believes may be affected by the prohibition of disclosure of information, and may suggest which persons should be formally named as responding parties to the application. The A.G. requests that this portion of the motion for directions be adjudicated in writing. 7. After reading the A.G.'s motion material, the Federal Court will, pursuant to s. 38.04(5)(c) of the Canada Evidence Act, designate the responding parties to the application and order the A.G. to provide notice of the application to these persons by effecting service of the notice of application and motion for directions upon them. 8. The Federal Court will then convene a case conference with the parties to the application (i.e., the A.G. and the responding parties) to discuss the remaining issues raised by the A.G.'s motion for directions, including (1) whether it is necessary to hold a hearing with respect to the matter; (2) whether any other persons should be provided with notice of the hearing of the matter; and (3) whether the application should be specially managed with a formal schedule for the remaining procedural steps. These case conferences are confidential and are held in camera. The public is denied access to these case conferences and, generally speaking, only the parties to the application, their counsel, the presiding judge and designated Court staff are present. 9. Following adjudication of the motion for directions, a formal schedule is established to prepare the s. 38.04 Canada Evidence Act application for hearing. Like ordinary applications before the Federal Court, these schedules contemplate an exchange of affidavit evidence, cross-examinations on affidavits, the preparation of application records (including memoranda of fact and law) and an oral hearing before a designated applications judge. Unlike ordinary applications before the Federal Court, these schedules contemplate that portions of the affidavit evidence, application records and the oral hearings before a designated applications judge will be "ex parte" (i.e., only seen and heard by the A.G. and the Court), while others will be "private" (i.e., seen and heard by the parties and the Court, but not available to the public). Indeed, a typical s. 38.04 Canada Evidence Act application will have the following steps: Page 9 745 (a) the A.G.'s "private" affidavits are served on the responding party and filed with the Court; (b) the responding party's "private" affidavits are served on the A.G. and filed with the Court; (c) the A.G.'s "ex parte" affidavits are filed with the Court; (d) cross-examinations on the parties' "private" affidavits take place out of court; (e) the A.G.'s "private" application record is served on the responding party and filed with the Court; (f) the A.G.'s "ex parte" application record is filed with the Court; (g) the responding party's "private" application record is filed with the Court; and (h) a hearing is convened at which there are both "private" sessions (at which all the parties are present but the public is excluded) and "ex parte" sessions (at which only the A.G. is present). 10. "Private" affidavits are affidavits prepared by a party to the application that are filed and served on the other parties and to which reference can be made at the portions of the hearings at which all parties are present (i.e., the "private" Court sessions). Such affidavits are, however, confidential by virtue of s. 38.12(2) and cannot be disclosed to the general public. 11. The A.G.'s position is that the "private" affidavits produced by him for the purposes of a s. 38.04 Canada Evidence Act application attempt to set out, in general terms, the factual and principled justification for protecting the information in issue from public disclosure, that is to say why the disclosure of the information would be injurious to international relations, national defence or national security. The A.G. advises that these "private" affidavits do not detail the information in issue (i.e., the information covered by the Notice), nor do they contain other specific facts that would themselves constitute "sensitive information" or "potentially injurious information". The A.G.'s stated purpose for filing and serving such "private" affidavits is to provide the responding parties seeking disclosure of the information in issue with as much factual material as possible so that they may understand why the A.G. is attempting to protect the information without compromising the information in issue or other sensitive/potentially injurious information regarding the need to protect the information in issue from disclosure. 12. "Ex parte" affidavits are affidavits that are filed by the A.G. and which are not served on the responding party. They are read only by the presiding judge and are only referred to at the ex parte portions of the hearings Page 10 746 where the A.G. is present and the responding party is excluded (i.e., the "ex parte" Court sessions) pursuant to s. 38.11(2) of the Canada Evidence Act. 13. The A.G.'s position is that the "ex parte" affidavits produced for the purposes of a s. 38.04 Canada Evidence Act application attempt to set out, in specific terms, the factual justification for protecting the information in issue from public disclosure, that is to say why the disclosure of the information would be injurious to international relations, national defence or national security. These affidavits also contain the information in issue that is covered by the Notice. 14. "Private" application records are filed and served on the other parties and reference can be made to these records at the "private" Court sessions. "Ex parte" application records filed by the A.G. are not served on the other parties, are read only by the presiding judge and are only referred to at the "ex parte" Court sessions pursuant to s. 38.11(2) of the Canada Evidence Act. 15. At the "private" Court sessions at which all parties to the application are present, argument is tendered with respect to, inter alia, (1) the potential relevance of the information in issue (if the relevance is not conceded by the A.G.), (2) whether disclosure of the information would be injurious to international relations, national defence or national security and (3) whether the public interest in disclosure outweighs in importance the public interest in non-disclosure. On the question of injury, such argument is presented in generalities by the A.G. because he does not wish to risk disclosure of the information in issue or risk compromising other sensitive/potentially injurious information. 16. At the "ex parte" Court sessions at which only the A.G. is present, the A.G. provides argument by reference to the "ex parte" affidavits with respect to whether disclosure of the information in issue would be injurious to international relations, national defence or national security. Counsel for the A.G. will be accompanied by the affiants who have sworn such affidavits so that they may be questioned by the presiding designated judge. 37 The agreed statement of facts does not deal with the right of the non-government party to seek leave to make ex parte representations. In the Court's experience to date, when ex parte representations are made by a party other than the Attorney General of Canada, only that party is present before the presiding judge. This may occur where the underlying proceeding is a criminal prosecution. Specifically, the accused may wish to make representations to the section 38 judge concerning the importance of disclosing the secret information to assist in defending the criminal charge. In such circumstances, the accused will prefer to make these submissions without disclosing to any other party the substance or detail of the defence in the criminal proceeding. Page 11 747 38 In addition, concerning paragraphs 6 and 7 of the agreed statement of facts, the order designating the respondents to the section 38 proceeding will often issue only after the motion for directions has been served on the potential interested parties, usually at the Court's request. This will occur particularly where these parties are aware that the Attorney General of Canada is in the process of filing the section 38 application. Paragraph 38.04(5)(a) requires the presiding judge to hear the representations of the Attorney General of Canada. There is no stipulation, however, that the identification of the interested parties must be done on an ex parte basis. Analysis A. The Constitutionality of the Impugned Provisions 39 As often repeated now by the Supreme Court of Canada, the open court principle is a cornerstone of our democracy enshrined in section 2(b) of the Charter: Toronto Star Newspapers v. Ontario, [2005] S.C.J. No. 41 at paragraph 1; Vancouver Sun (Re), [2004] 2 S.C.R. 332 at paragraph 23; Ruby v. Canada (Solicitor General of Canada), [2002] 4 S.C.R. 3 at paragraph 53; Canadian Broadcasting Corporation v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480 at paragraph 23; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 at 1339-40; and Attorney General of Nova Scotia v. Macintyre, [1982] 1 S.C.R. 175 at 187. 40 All parties agree that the impugned provisions of section 38 infringe section 2(b) of the Charter. However, the defendant (sometimes referred to in these reasons as the Attorney General of Canada) argues that these infringements constitute reasonable limits on the open court principle and are demonstrably justifiable in a free and democratic society. 41 The defendant bears the onus of establishing that the impugned provisions are saved by section 1 of the Charter in keeping with the justificatory test established in R. v. Oakes, [1986] 1 S.C.R. 103. In this proceeding, no section 1 affidavit evidence was filed. 42 The plaintiffs concede that preventing the inadvertent disclosure of the secret information is a sufficiently pressing and substantial legislative objective as to satisfy the first branch of the Oakes test. 43 Counsel for the Attorney General of Canada advanced the view that subsection 38.11(1) is saved by other provisions of section 38. More specifically, in his written submissions, counsel argued that subsection 38.04(5) confers upon the Federal Court the discretion to name the Toronto Star as a respondent to the application and the possibility of granting to the Toronto Star the same access to the Court records as it grants to Mr. Mohamed. Moreover, according to this view, the designated judge could order the Attorney General of Canada to notify the Toronto Star and grant to the Toronto Star the opportunity to make representations. With respect, this submission cannot be correct. 44 Pursuant to paragraph 38.04(5)(a), the judge shall hear the representations of the Attorney Page 12 748 General of Canada "concerning the identity of all parties or witnesses whose interests may be affected by either the prohibition of disclosure or the conditions to which disclosure is subject..." (emphasis added). Any such party or witness would then be designated as a respondent: paragraphs 6 and 7 of the agreed statement of facts. 45 The same statutory provision also mandates the judge to hear the submissions of the Attorney General of Canada "concerning the persons who should be given notice of any hearing of the matter". 46 Under paragraph 38.04(5)(c), the judge then determines who should be given notice of the hearing. This will usually be done on the basis of submissions from the Attorney General of Canada and any other party who has been identified as having an apparent legal interest. This paragraph also authorizes the judge to order the Attorney General of Canada to notify such persons and determine the content and form of the notice. 47 In my view, neither of these provisions allows the judge to designate the Toronto Star or any other member of the media as a respondent or a person to be given notice of the hearing. 48 As early as February 7, 2006, the parties in the designated proceeding and this Court were made aware of the Toronto Star's intention to challenge the constitutionality of those provisions which prohibited the media from accessing the private sessions. No one suggested during the designated proceeding that the Toronto Star could be named as a respondent or provided access to the private sessions through the notification process. 49 In any event, I do not understand the Toronto Star to be seeking the status of respondent or the right to file affidavits or memoranda of law. The Toronto Star is simply seeking to enforce the open court principle and to obtain access to the private sessions as a member of the media. 50 The media's concern in keeping the public informed about section 38 proceedings is not encompassed within the "interests" protected under subsection 38.04(5). Where an entity such as the Toronto Star wishes to exercise its "interests", in the legal sense of this term, it may seek to cause the disclosure of the information by initiating an application under paragraph 38.04(2)(c): for example, Ottawa Citizen Group Inc. v. Canada (Attorney General of Canada), [2004] F.C.J. No. 1303, 2004 FC 1052 and [2006] F.C.J. No. 1969, 2006 FC 1552. 51 In addition, the Attorney General of Canada did not suggest a principled basis upon which the Court would be entitled to grant respondent status or access rights to the Toronto Star but not to the media at large. Again, I do not understand the defendant to be proposing that all members of the media be designated as respondents. 52 The position of the Attorney General of Canada was more nuanced during oral submissions. There, counsel focused less on characterizing the role of the Toronto Star as a respondent. The suggestion was that the Court had the discretion under paragraph 38.04(5)(c) to order that the Page 13 749 Toronto Star be given notice of the section 38 hearing and granted access to the proceeding, subject to a publication ban until the disposition of the matter. 53 The construction of paragraph 38.04(5)(c) advanced by the Attorney General of Canada functions as a minimal impairment argument. In effect, counsel for the government argues that the impugned provisions trench justifiably on the open court principle. In his view, paragraph 38.04(5)(c) may be interpreted as conferring upon the Court the discretion to allow the Toronto Star to access the private sessions and records subject to a publication ban lasting until a final order, disposing of the application, is rendered pursuant to section 38.06. 54 The interpretation proffered by the Attorney General of Canada does not give full effect to the open court principle. Public access to judicial proceedings cannot depend on fortuitous circumstances which lead one or more members of the media to seek access under paragraph 38.04(5)(c). Nor can open courts depend on one of the parties to the litigation making submissions to the Court that the media be provided access. 55 Counsel for the Attorney General of Canada acknowledged that the discretion available to the Court according to his interpretation of paragraph 38.04(5)(c) was not envisaged by Parliament. I agree. When read in their entire context and according to their ordinary sense, keeping in mind the objectives of section 38, the language of subparagraphs 38.04(5)(c)(i), (ii), and (iii) cannot be interpreted as a mechanism to apply the open court principle: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27. 56 In any event, and I do not decide the issue on this ground, I am not convinced that the interpretation of the Attorney General of Canada is consistent with the prohibition against disclosure of the existence of the file in paragraph 38.02(1)(c). 57 More importantly, even if this submission of the Attorney General of Canada were accepted, granting access to one media outlet falls well short of justifying the infringement of the open court principle and the presumptive openness of judicial proceedings. 58 In particular, counsel for the Attorney General of Canada contended that media access to the private sessions would necessarily be coupled with a publication ban. According to counsel, the Court has the authority to allow the Toronto Star and other media to attend the private sessions, but cannot authorize the publication of any news reports about the hearing, at least until the matter has been completed. 59 In Vancouver Sun (Re), [2004] 2 S.C.R. 332, which also involved national security considerations, the Supreme Court of Canada rejected a similar argument for granting media access to a hearing subject to a publication ban (at paragraph 49): [W]e would not endorse the suggestion made by the Vancouver Sun that some members of its Editorial Board be allowed to attend the hearings and have access Page 14 750 to the materials but be subject to an undertaking of confidentiality. It is difficult again to understand how the public good is better served by the qualified participation of professionals who cannot discharge fully their publicly entrusted mandate. 60 It bears repeating that there is no secret information disclosed in private sessions and materials. The open court principle requires media access and timely publication. Counsel has not identified a public interest to be served by postponing publication of what occurs in private sessions until the disposition of the section 38 hearing. To support his position that publication should be postponed, counsel for the government relied upon the suggestion in Vancouver Sun (Re) (at paragraph 58) that the decision to publicly release sealed information should take place at the end of the judicial investigative hearing in a criminal matter. However, this conclusion was not intended for the circumstances of section 38 proceedings. 61 In defending the constitutionality of the impugned provisions, the Attorney General of Canada advances an interpretation of the section 38 scheme that would entitle members of the media to be designated as interested parties or provided access to the private sessions subject to a publication ban. In the end, the best one can say about this position is that "necessity is usually the fuel of ingenuity", to take the phrase used by counsel. In this case, however, the inventive construction put forward to save the impugned provisions does not do sufficient justice to the open court principle. 62 In Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, the Supreme Court of Canada considered the constitutionality of provisions similar to those challenged in this proceeding. 63 Ruby involved a narrow challenge to the constitutionality of mandatory procedural requirements set out in paragraph 51(2)(a) and subsection 51(3) of the Privacy Act, R.S.C. 1985, c. P-21: 51. (2) An application referred to in subsection (1) or an appeal brought in respect of such application shall (a) be heard in camera; ... (3) During the hearing of an application referred to in subsection (1) ..., the head of the government institution concerned shall, on the request of the head of the institution, be given the opportunity to make representations ex parte. [Emphasis added] * * * 51. (2) Les recours visés au paragraphe (1) font, en premier ressort ou en appel, l'objet d'une audition à huis clos; ... (3) Le responsable de l'institution fédérale concernée a, au cours des auditions en première instance ou en appel et sur demande, le droit de présenter des arguments en l'absence d'une autre partie. Page 15 751 64 Section 51 of the Privacy Act establishes the procedure governing the conduct of judicial review application hearings where a government institution refuses an individual's request for access to personal information in order to protect government interests similar to those involved in section 38 proceedings. 65 Paragraph 51(2)(a) and subsection 51(3) require the reviewing court to hold the application hearing in private and to accept ex parte submissions at the request of the government institution refusing disclosure. 66 As in these proceedings, the question before the Supreme Court of Canada was whether the impugned provisions trenched unjustifiably on the open court principle. 67 The Supreme Court affirmed the validity of the statutory requirement that government submissions concerning secret information be received ex parte and in private. In view of this decision, the plaintiffs in this case, as noted earlier, did not challenge the constitutionality of the analogous requirement in subsection 38.11(2). 68 Writing for the unanimous Court, Justice Louise Arbour found that paragraph 51(2)(a) failed the Oakes test at the minimal impairment branch. In particular, Justice Arbour concluded that the mandatory requirement to exclude the public from portions of the review hearing when there existed no risk that national security information or foreign confidences could be disclosed was overbroad: A[S]ection [51(2)(a)] is overbroad in closing the court to the public even where no concern exists to justify such a departure from the general principle of open courts (Ruby at paragraph 59, emphasis added). 69 Justice Arbour's characterization of the overbroad scope of paragraph 51(2)(a) of the Privacy Act applies with equal force to the analogous procedural requirement in subsection 38.11(1), which prohibits public access to the private sessions of section 38 proceedings. 70 In my view, the impugned provisions do more than is minimally required to safeguard the secret information and therefore trench unduly on the open court principle. Accordingly, I conclude that these provisions fail at the minimal impairment branch of the Oakes test and cannot be saved under section 1 of the Charter. 71 On the basis of the same principles enunciated in Ruby, I find that subsection 38.11(1) is overbroad in closing the court to the public even where no secret information is at risk to justify a departure from the open court principle. 72 Similarly, subsections 38.04(4) and 38.12(2) are overbroad in subjecting all court records associated with the private sessions to mandatory confidentiality requirements where no secret information is at risk to justify a departure from the general principle of open courts. My view in this regard is consistent with the acknowledgement by all parties that the outcome concerning the constitutionality of all three impugned provisions should be the same. Page 16 752 B. The Appropriate Constitutional Remedy 73 During the hearing to canvass the parties' views on remedies, the Attorney General of Canada argued that, in the event this Court concluded the impugned provisions constituted an unjustified infringement of the open court principle, the appropriate remedy would be to strike down these provisions. This submission varied the original suggestion by counsel for the government that reading down was the appropriate remedial solution. 74 In arguing that the appropriate remedy is to strike down the impugned provisions, the Attorney General of Canada purported to rely on the Supreme Court's decision in Ruby. 75 First, the impugned provisions in Ruby were not struck down. Justice Arbour relied on reading down as a constitutional remedy in rendering section 51 of the Privacy Act compliant with section 2(b) of the Charter. 76 It had been the practice of counsel, on consent, to conduct Privacy Act hearings in public where no secret information could be disclosed. The Supreme Court disapproved of this practice. For Justice Arbour, it was not open to the parties to bypass Parliament's unambiguous language clearly intended to exclude the public from section 51 hearings. 77 I understand Justice Arbour to have relied on reading down as the appropriate constitutional remedy to cure the overbroad scope of the mandatory in camera hearing required by paragraph 51(2)(a). She accommodated the constitutional imperative that private sessions, where no secret information is disclosed, be open to the public by invoking the reading down mechanism (at paragraphs 58 and 60): Unless the mandatory requirement is found to be unconstitutional and the section is "read down" as a constitutional remedy, it cannot otherwise be interpreted to bypass its mandatory nature. [...] The appropriate remedy is therefore to read down s. 51(2)(a) so that it applies only to the ex parte submissions mandated by s. 51(3). A reviewing court retains the discretion, pursuant to s. 46, to conduct the remainder of the hearing or any portion thereof, either in public, or in camera, or in camera and ex parte. [Emphasis added]. 78 Second, contrary to what was argued by the Attorney General of Canada, the provisions of Page 17 753 section 38 provide for the flexibility found in section 46 of the Privacy Act. 79 In particular, subsection 38.12(1) confers a broad discretion upon the presiding judge to make any order to protect the confidentiality of the information to which the hearing relates. In addition, subsection 38.04(4) confers an analogous discretion upon the Chief Administrator of the Courts Administration Service to adopt any appropriate measure to safeguard the confidentiality of section 38 applications. 80 Subsections 38.04(4) and 38.12(1) reflect Parliament's intent to afford the designated judge the discretion to adopt any confidentiality measures required to safeguard secret information. In the rare, indeed unlikely, event that the circumstances surrounding a section 38 proceeding require that the public be prohibited from accessing even the private sessions and related documents, the judge has the discretionary authority, analogous to that provided for in section 46 of the Privacy Act, capable of safeguarding the confidentiality of any information when required. 81 The government argued that Rules 26, 29, 151 of the Federal Courts Rules concerning the inspection of court files, in camera hearings, and confidentiality orders provide the Court discretionary authority to protect secret information. In my view, this discretionary authority is conferred upon the Court by section 38 and I do not concede that recourse to the Federal Courts Rules is necessary. If I am wrong, however, these Rules do afford the Court a further flexibility to adopt any measures to prevent the inappropriate disclosure of secret information. 82 Put simply, the approach to reading down adopted in Ruby is the appropriate manner in which to remedy the constitutional defects in the impugned provisions of section 38. 83 Concerning the mandatory exclusion of the public from the private sessions, I find that the structure of subsections 38.11(1) and 38.11(2) mirrors that of paragraph 51(2)(a) and subsection 51(3) of the Privacy Act. Accordingly, subsection 38.11(1) ought to be read down as a constitutional remedy to apply only to the ex parte representations provided for in subsection 38.11(2). 84 As in Ruby, the effect of this decision will be that private sessions, as defined in these reasons, are presumptively open to the public. To repeat, in the exceptional event where the exclusion of the public may be justified even when all parties are present, subsections 38.04(4) and 38.12(1) provide the Court with the discretionary authority to adopt such measures as are warranted by the circumstances to protect the confidentiality of secret information. 85 The "rare, indeed unlikely, event" I have referred to in paragraph 80 is to be understood in the context of the premise of this decision, that the existence of the designated proceeding has been made public. 86 The mandatory confidentiality requirements in subsections 38.04(4) and 38.12(2) should also be read down, as a constitutional remedy, to apply only to the ex parte representations provided for Page 18 754 in subsection 38.11(2). As a result of this decision, all court records accessible to the non-government party are presumptively available to the public. Again, subsections 38.04(4) and 38.12(2) provide the discretion, if ever necessary, to maintain confidentiality with respect to any record available to all parties. 87 The reading down I am adopting will exclude the public from all ex parte representations, those made by the Attorney General of Canada as of right and those made by a non-government party with leave of the Court. This conclusion masks an outstanding legal issue not addressed by the parties. 88 The debate in this case centered on national security considerations, not on the interests which might be asserted by a non-government party during ex parte representations. The focus was on sessions where all parties were present and on ex parte sessions granted as of right to the Attorney General of Canada. There was no discussion of the constitutionality of closed hearings to receive the ex parte representations of a non-government party. 89 In its written submissions, the Toronto Star acknowledged that it was not seeking access to ex parte sessions on the basis of the decision in Ruby. However, under subsection 38.11(2), the non-government party may also seek to make ex parte representations. This is an additional legal consideration which was not at issue in Ruby. This distinction was not referred to in the agreed statement of facts, nor was it the subject of any submissions in this proceeding. 90 In the absence of both an evidentiary record and submissions of counsel, I have chosen to leave the matter open and to preserve the status quo concerning the mandatory exclusion of the public where the non-government party is permitted to make ex parte representations. In this decision, the impugned provisions will be read down so as to apply to all ex parte representations envisaged in subsection 38.11(2). Conclusion 91 For the foregoing reasons, the constitutional questions raised by this motion are answered as follows: 1. Do subsections 38.04(4), 38.11(1), and 38.12(2) of the Canada Evidence Act constitute infringements of the Toronto Star's rights as guaranteed by section 2(b) of the Canadian Charter of Rights and Freedoms? Answer: Yes, as was conceded by the defendant. 2. Are the infringements constituted by subsections 38.04(4), 38.11(1), and 38.12(2) Canada Evidence Act justified under section 1 of the Canadian Page 19 755 Charter of Rights and Freedoms? Answer: No. The impugned provisions fail the Oakes test at the minimum impairment branch. The words in subsection 38.04(4), "An application under this section is confidential. ..." ("Toute demande présentée en application du présent article est confidentielle. ..."), are read down, as a constitutional remedy, to apply only to the ex parte representations provided for in subsection 38.11(2). The words in subsection 38.11(1), "A hearing under subsection 38.04(5) ... shall be heard in private..." ("Les audiences prévues au paragraphe 38.04(5) ... sont tenues à huis clos..."), are read down, as a constitutional remedy, to apply only to the ex parte representations provided for in subsection 38.11(2). The words in subsection 38.12(2), "The court records relating to the hearing... are confidential. ..." ("Le dossier ayant trait à l'audience... est confidential. ..."), are read down, as a constitutional remedy, to apply only to the ex parte representations provided for in subsection 38.11(2). 92 The defendant shall pay to the plaintiff Toronto Star Newspapers Limited the costs of this motion. There will be no order as to costs concerning the plaintiff Kassim Mohamed. LUTFY C.J. * * * * * Schedule A: Excerpts from Section 38 of the Canada Evidence Act International Relations and National Defence and National Security ... 38.01 (1) Every participant who, in connection with a proceeding, is required to disclose, or expects to disclose or cause the disclosure of, information that the Page 20 756 participant believes is sensitive information or potentially injurious information shall, as soon as possible, notify the Attorney General of Canada in writing of the possibility of the disclosure, and of the nature, date and place of the proceeding. (2) Every participant who believes that sensitive information or potentially injurious information is about to be disclosed, whether by the participant or another person, in the course of a proceeding shall raise the matter with the person presiding at the proceeding and notify the Attorney General of Canada in writing of the matter as soon as possible, whether or not notice has been given under subsection (1). In such circumstances, the person presiding at the proceeding shall ensure that the information is not disclosed other than in accordance with this Act. (3) An official, other than a participant, who believes that sensitive information or potentially injurious information may be disclosed in connection with a proceeding may notify the Attorney General of Canada in writing of the possibility of the disclosure, and of the nature, date and place of the proceeding. (4) An official, other than a participant, who believes that sensitive information or potentially injurious information is about to be disclosed in the course of a proceeding may raise the matter with the person presiding at the proceeding. If the official raises the matter, he or she shall notify the Attorney General of Canada in writing of the matter as soon as possible, whether or not notice has been given under subsection (3), and the person presiding at the proceeding shall ensure that the information is not disclosed other than in accordance with this Act. ... 38.02(1) Subject to subsection 38.01(6), no person shall disclose in connection with a proceeding (a) information about which notice is given under any of subsections 38.01(1) to (4); (b) the fact that notice is given to the Attorney General of Canada under any of subsections 38.01(1) to (4), or to the Attorney General of Canada and the Minister of National Defence under subsection 38.01(5); (c) the fact that an application is made to the Federal Court under section 38.04 or that an appeal or review of an order made under any of Page 21 757 subsections 38.06(1) to (3) in connection with the application is instituted; or (d) the fact that an agreement is entered into under section 38.031 or subsection 38.04(6). ... 38.03 (1) The Attorney General of Canada may, at any time and subject to any conditions that he or she considers appropriate, authorize the disclosure of all or part of the information and facts the disclosure of which is prohibited under subsection 38.02(1). ... (3) The Attorney General of Canada shall, within 10 days after the day on which he or she first receives a notice about information under any of subsections 38.01(1) to (4), notify in writing every person who provided notice under section 38.01 about that information of his or her decision with respect to disclosure of the information. 38.031 (1) The Attorney General of Canada and a person who has given notice under subsection 38.01(1) or (2) and is not required to disclose information but wishes, in connection with a proceeding, to disclose any facts referred to in paragraphs 38.02(1)(b) to (d) or information about which he or she gave the notice, or to cause that disclosure, may, before the person applies to the Federal Court under paragraph 38.04(2)(c), enter into an agreement that permits the disclosure of part of the facts or information or disclosure of the facts or information subject to conditions. ... 38.04 (2) If, with respect to information about which notice was given under any of subsections 38.01(1) to (4), the Attorney General of Canada does not provide notice of a decision in accordance with subsection 38.03(3) or, other than by an agreement under section 38.031, authorizes the disclosure of only part of the information or disclosure subject to any conditions, ... Page 22 758 (c) a person who is not required to disclose information in connection with a proceeding but who wishes to disclose it or to cause its disclosure may apply to the Federal Court for an order with respect to disclosure of the information. ... (4) An application under this section is confidential. Subject to section 38.12, the Chief Administrator of the Courts Administration Service may take any measure that he or she considers appropriate to protect the confidentiality of the application and the information to which it relates. (5) As soon as the Federal Court is seized of an application under this section, the judge (a) shall hear the representations of the Attorney General of Canada and, in the case of a proceeding under Part III of the National Defence Act, the Minister of National Defence, concerning the identity of all parties or witnesses whose interests may be affected by either the prohibition of disclosure or the conditions to which disclosure is subject, and concerning the persons who should be given notice of any hearing of the matter; (b) shall decide whether it is necessary to hold any hearing of the matter; (c) if he or she decides that a hearing should be held, shall (i) determine who should be given notice of the hearing, (ii) order the Attorney General of Canada to notify those persons, and (iii) determine the content and form of the notice; and (d) if he or she considers it appropriate in the circumstances, may give any person the opportunity to make representations. ... 38.06 (1) Unless the judge concludes that the disclosure of the information would be injurious to international relations or national defence or national security, the judge may, by order, authorize the disclosure of the information. (2) If the judge concludes that the disclosure of the information would be injurious to Page 23 759 international relations or national defence or national security but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge may by order, after considering both the public interest in disclosure and the form of and conditions to disclosure that are most likely to limit any injury to international relations or national defence or national security resulting from disclosure, authorize the disclosure, subject to any conditions that the judge considers appropriate, of all of the information, a part or summary of the information, or a written admission of facts relating to the information. (3) If the judge does not authorize disclosure under subsection (1) or (2), the judge shall, by order, confirm the prohibition of disclosure. ... 38.09 (1) An order made under any of subsections 38.06(1) to (3) may be appealed to the Federal Court of Appeal. (2) An appeal shall be brought within 10 days after the day on which the order is made or within any further time that the Court considers appropriate in the circumstances. 38.1 Notwithstanding any other Act of Parliament, (a) an application for leave to appeal to the Supreme Court of Canada from a judgment made on appeal shall be made within 10 days after the day on which the judgment appealed from is made or within any further time that the Supreme Court of Canada considers appropriate in the circumstances; and (b) if leave to appeal is granted, the appeal shall be brought in the manner set out in subsection 60(1) of the Supreme Court Act but within the time specified by the Supreme Court of Canada. 38.11 (1) A hearing under subsection 38.04(5) or an appeal or review of an order made under any of subsections 38.06(1) to (3) shall be heard in private and, at the request of either the Attorney General of Canada or, in the case of a proceeding under Part III of the National Defence Act, the Minister of National Defence, shall be heard in the National Capital Region, as described in the schedule to the National Capital Act. Page 24 760 (2) The judge conducting a hearing under subsection 38.04(5) or the court hearing an appeal or review of an order made under any of subsections 38.06(1) to (3) may give any person who makes representations under paragraph 38.04(5)(d), and shall give the Attorney General of Canada and, in the case of a proceeding under Part III of the National Defence Act, the Minister of National Defence, the opportunity to make representations ex parte. 38.12 (1) The judge conducting a hearing under subsection 38.04(5) or the court hearing an appeal or review of an order made under any of subsections 38.06(1) to (3) may make any order that the judge or the court considers appropriate in the circumstances to protect the confidentiality of the information to which the hearing, appeal or review relates. (2) The court records relating to the hearing, appeal or review are confidential. The judge or the court may order that the records be sealed and kept in a location to which the public has no access. 38.13 (1) The Attorney General of Canada may personally issue a certificate that prohibits the disclosure of information in connection with a proceeding for the purpose of protecting information obtained in confidence from, or in relation to, a foreign entity as defined in subsection 2(1) of the Security of Information Act or for the purpose of protecting national defence or national security. ... 38.131 (1) A party to the proceeding referred to in section 38.13 may apply to the Federal Court of Appeal for an order varying or cancelling a certificate issued under that section on the grounds referred to in subsection (8) or (9), as the case may be. ... * * * Relations internationales et défense et sécurité nationales ... 38.01 (1) Tout participant qui, dans le cadre d'une instance, est tenu de divulguer ou prévoit de divulguer ou de faire divulguer des renseignements dont il croit qu'il s'agit de renseignements sensibles ou de renseignements potentiellement Page 25 761 préjudiciables est tenu d'aviser par écrit, dès que possible, le procureur général du Canada de la possibilité de divulgation et de préciser dans l'avis la nature, la date et le lieu de l'instance. (2) Tout participant qui croit que des renseignements sensibles ou des renseignements potentiellement préjudiciables sont sur le point d'être divulgués par lui ou par une autre personne au cours d'une instance est tenu de soulever la question devant la personne qui préside l'instance et d'aviser par écrit le procureur général du Canada de la question dès que possible, que ces renseignements aient fait ou non l'objet de l'avis prévu au paragraphe (1). Le cas échéant, la personne qui préside l'instance veille à ce que les renseignements ne soient pas divulgués, sauf en conformité avec la présente loi. (3) Le fonctionnaire C à l'exclusion d'un participant C qui croit que peuvent être divulgués dans le cadre d'une instance des renseignements sensibles ou des renseignements potentiellement préjudiciables peut aviser par écrit le procureur général du Canada de la possibilité de divulgation; le cas échéant, l'avis précise la nature, la date et le lieu de l'instance. (4) Le fonctionnaire C à l'exclusion d'un participant C qui croit que des renseignements sensibles ou des renseignements potentiellement préjudiciables sont sur le point d'être divulgués au cours d'une instance peut soulever la question devant la personne qui préside l'instance; le cas échéant, il est tenu d'aviser par écrit le procureur général du Canada de la question dès que possible, que ces renseignements aient fait ou non l'objet de l'avis prévu au paragraphe (3) et la personne qui préside l'instance veille à ce que les renseignements ne soient pas divulgués, sauf en conformité avec la présente loi. ... 38.02 (1) Sous réserve du paragraphe 38.01(6), nul ne peut divulguer, dans le cadre d'une instance : a) les renseignements qui font l'objet d'un avis donné au titre de l'un des paragraphes 38.01(1) à (4); b) le fait qu'un avis est donné au procureur général du Canada au titre de l'un des paragraphes 38.01(1) à (4), ou à ce dernier et au ministre de la Défense nationale au titre du paragraphe 38.01(5); c) le fait qu'une demande a été présentée à la Cour fédérale au titre de Page 26 762 l'article 38.04, qu'il a été interjeté appel d'une ordonnance rendue au titre de l'un des paragraphes 38.06(1) à (3) relativement à une telle demande ou qu'une telle ordonnance a été renvoyée pour examen; d) le fait qu'un accord a été conclu au titre de l'article 38.031 ou du paragraphe 38.04(6). ... 38.03 (1) Le procureur général du Canada peut, à tout moment, autoriser la divulgation de tout ou partie des renseignements ou des faits dont la divulgation est interdite par le paragraphe 38.02(1) et assortir son autorisation des conditions qu'il estime indiquées. ... (3) Dans les dix jours suivant la réception du premier avis donné au titre de l'un des paragraphes 38.01(1) à (4) relativement à des renseignements donnés, le procureur général du Canada notifie par écrit sa décision relative à la divulgation de ces renseignements à toutes les personnes qui ont donné un tel avis. 38.031 (1) Le procureur général du Canada et la personne ayant donné l'avis prévu aux paragraphes 38.01(1) ou (2) qui n'a pas l'obligation de divulguer des renseignements dans le cadre d'une instance, mais veut divulguer ou faire divulguer les renseignements qui ont fait l'objet de l'avis ou les faits visés aux alinéas 38.02(1) b) à d), peuvent, avant que cette personne présente une demande à la Cour fédérale au titre de l'alinéa 38.04(2) c), conclure un accord prévoyant la divulgation d'une partie des renseignements ou des faits ou leur divulgation assortie de conditions. ... 38.04 (2) Si, en ce qui concerne des renseignements à l'égard desquels il a reçu un avis au titre de l'un des paragraphes 38.01(1) à (4), le procureur général du Canada n'a pas notifié sa décision à l'auteur de l'avis en conformité avec le paragraphe 38.03(3) ou, sauf par un accord conclu au titre de l'article 38.031, il a autorisé la divulgation d'une partie des renseignements ou a assorti de conditions son autorisation de divulgation : ... Page 27 763 c) la personne qui n'a pas l'obligation de divulguer des renseignements dans le cadre d'une instance, mais qui veut en divulguer ou en faire divulguer, peut demander à la Cour fédérale de rendre une ordonnance concernant la divulgation des renseignements. ... (4) Toute demande présentée en application du présent article est confidentielle. Sous réserve de l'article 38.12, l'administrateur en chef du Service administratif des tribunaux peut prendre les mesures qu'il estime indiquées en vue d'assurer la confidentialité de la demande et des renseignements sur lesquels elle porte. (5) Dès que la Cour fédérale est saisie d'une demande présentée au titre du présent article, le juge : (a) entend les observations du procureur général du Canada C et du ministre de la Défense nationale dans le cas d'une instance engagée sous le régime de la partie III de la Loi sur la défense nationale C sur l'identité des parties ou des témoins dont les intérêts sont touchés par l'interdiction de divulgation ou les conditions dont l'autorisation de divulgation est assortie et sur les personnes qui devraient être avisées de la tenue d'une audience; (b) décide s'il est nécessaire de tenir une audience; (c) s'il estime qu'une audience est nécessaire : (i) spécifie les personnes qui devraient en être avisées, (ii) ordonne au procureur général du Canada de les aviser, (iii) détermine le contenu et les modalités de l'avis; (d) s'il l'estime indiqué en l'espèce, peut donner à quiconque la possibilité de présenter des observations. ... 38.06 (1) Le juge peut rendre une ordonnance autorisant la divulgation des renseignements, sauf s'il conclut qu'elle porterait préjudice aux relations internationales ou à la défense ou à la sécurité nationales. Page 28 764 (2) Si le juge conclut que la divulgation des renseignements porterait préjudice aux relations internationales ou à la défense ou à la sécurité nationales, mais que les raisons d'intérêt public qui justifient la divulgation l'emportent sur les raisons d'intérêt public qui justifient la non-divulgation, il peut par ordonnance, compte tenu des raisons d'intérêt public qui justifient la divulgation ainsi que de la forme et des conditions de divulgation les plus susceptibles de limiter le préjudice porté aux relations internationales ou à la défense ou à la sécurité nationales, autoriser, sous réserve des conditions qu'il estime indiquées, la divulgation de tout ou partie des renseignements, d'un résumé de ceux-ci ou d'un aveu écrit des faits qui y sont liés. (3) Dans le cas où le juge n'autorise pas la divulgation au titre des paragraphes (1) ou (2), il rend une ordonnance confirmant l'interdiction de divulgation. ... 38.09 (1) Il peut être interjeté appel d'une ordonnance rendue en application de l'un des paragraphes 38.06(1) à (3) devant la Cour d'appel fédérale. (2) Le délai dans lequel l'appel peut être interjeté est de dix jours suivant la date de l'ordonnance frappée d'appel, mais la Cour d'appel fédérale peut le proroger si elle l'estime indiqué en l'espèce. 38.1 Malgré toute autre loi fédérale : a) le délai de demande d'autorisation d'en appeler à la Cour suprême du Canada est de dix jours suivant le jugement frappé d'appel, mais ce tribunal peut proroger le délai s'il l'estime indiqué en l'espèce; b) dans les cas où l'autorisation est accordée, l'appel est interjeté conformément au paragraphe 60(1) de la Loi sur la Cour suprême, mais le délai qui s'applique est celui qu'a fixé la Cour suprême du Canada. 38.11 (1) Les audiences prévues au paragraphe 38.04(5) et l'audition de l'appel ou de l'examen d'une ordonnance rendue en application de l'un des paragraphes 38.06(1) à (3) sont tenues à huis clos et, à la demande soit du procureur général du Canada, soit du ministre de la Défense nationale dans le cas des instances engagées sous le régime de la partie III de la Loi sur la défense nationale, elles ont lieu dans la région de la capitale nationale définie à l'annexe de la Loi sur la capitale nationale. Page 29 765 (2) Le juge saisi d'une affaire au titre du paragraphe 38.04(5) ou le tribunal saisi de l'appel ou de l'examen d'une ordonnance rendue en application de l'un des paragraphes 38.06(1) à (3) donne au procureur général du Canada C et au ministre de la Défense nationale dans le cas d'une instance engagée sous le régime de la partie III de la Loi sur la défense nationale C la possibilité de présenter ses observations en l'absence d'autres parties. Il peut en faire de même pour les personnes qu'il entend en application de l'alinéa 38.04(5)d). 38.12 (1) Le juge saisi d'une affaire au titre du paragraphe 38.04(5) ou le tribunal saisi de l'appel ou de l'examen d'une ordonnance rendue en application de l'un des paragraphes 38.06(1) à (3) peut rendre toute ordonnance qu'il estime indiquée en l'espèce en vue de protéger la confidentialité des renseignements sur lesquels porte l'audience, l'appel ou l'examen. (2) Le dossier ayant trait à l'audience, à l'appel ou à l'examen est confidentiel. Le juge ou le tribunal saisi peut ordonner qu'il soit placé sous scellé et gardé dans un lieu interdit au public. 38.13 (1) Le procureur général du Canada peut délivrer personnellement un certificat interdisant la divulgation de renseignements dans le cadre d'une instance dans le but de protéger soit des renseignements obtenus à titre confidentiel d'une entité étrangère C au sens du paragraphe 2(1) de la Loi sur la protection de l'information C ou qui concernent une telle entité, soit la défense ou la sécurité nationales. ... 38.131 (1) Toute partie à l'instance visée à l'article 38.13 peut demander à la Cour d'appel fédérale de rendre une ordonnance modifiant ou annulant un certificat délivré au titre de cet article pour les motifs mentionnés aux paragraphes (8) ou (9), selon le cas. ... * * * Schedule B: List of Section 38 Applications Filed in Federal Court Since the coming into force of the Anti-Terrorism Act, S.C. 2001, c. 41 on December 24, 2001, fourteen (14) section 38 applications have been publicly Page 30 766 disclosed. These are: - Ribic v. Canada, court file DES-7-01: [2002] F.C.J. No. 384, 2002 FCT 290. This file, commenced on December 10, 2001, was decided under section 38 as amended by the Anti-Terrorism Act. - Canada (Attorney General) v. Ribic, court file DES-1-02: [2002] F.C.J. No. 1186, 2002 FCT 839. - Canada (Attorney General) v. Ribic, court file DES-2-02: [2002] F.C.J. No. 1835, 2002 FCT 1044. - Ribic v. Canada (Attorney General), court file DES-3-02: [2003] F.C.J. No. 1965, 2003 FCT 10, aff'd [2003] F.C.J. No. 1964, 2003 FCA 246. - Canada (Attorney General) v. Ribic, court file DES-5-02: [2003] F.C.J. No. 1966, 2003 FCT 43, aff'd [2003] F.c.J. No. 1964, 2003 FCA 246. - Canada (Attorney General) v. Kempo, court file DES-1-03: notice of discontinuance filed on October 27, 2005. - Canada (Attorney General) v. Ouzghar, court file DES-4-03: notice of discontinuance filed on July 20, 2005. - Canada (Attorney General) v. Brad Kempo, court file DES-5-03: [2004] F.C.J. No. 2196, 2004 FC 1678. - Ottawa Citizen Group Inc. v. Canada (Attorney General), court file DES-1-04: [2004] F.C.J. No. 1303, 2004 FC 1052. - Canadian Broadcasting Corporation v. Canada (Attorney General), court file DES-2-04: notice of discontinuance filed on March 31, 2004. - Canada (Attorney General) v. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, court file DES-4-04: notice of discontinuance filed on April 4, 2004. - Ribic v. Canada, court file DES-1-05: adjourned sine die on June 3, 2005. - Canada (Attorney General) v. Mohamed, court file DES-1-06. - Canada (Attorney General) v. Khawaja, court file DES-2-06. - Canada (Attorney General) v. Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar, court file DES-4-06. cp/e/qlaim/qlcem/qltxp Page 31 767

Applicant's Record (september 30, 2014)

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