6.32: Notice to media

Case Summary

The Applicants applied for a Restricted Court Access Order seeking, among other things, to ban the publication of one of the Applicants’ identity, John Doe. Associate Chief Justice Nielsen dismissed the Application directing that John Doe must participate in the proceeding by his real name.

When a Restricted Court Access Application is filed, Rule 6.32 requires that a copy of it must be served on the Court Clerk, who, in accordance with direction from the Chief Justice, must give notice of the Application to the media or other persons identified by the Court. Notice was given in accordance with Rule 6.32. CTV and CBC/Radio-Canada opposed the Application.

Associate Chief Justice Nielsen outlined the test for a discretionary Restricted Court Access Order as stated by the Supreme Court of Canada in Sherman Estate v Donovan, 2021 SCC 25. An Applicant wanting to limit the open Court presumption must establish that: (1) the Court openness poses a serious risk to an important public interest; (2) the Order sought is necessary to prevent this serious risk to the identified interest because reasonable alternative measures will not prevent this risk; and (3) as a matter of proportionality, the benefits of the Order outweigh its negative effects. Failure to establish an important public interest ends the analysis.

The Applicants argued that Court openness would injure three important public interests: privacy, confidentiality, and the right to a fair Trial. The Court disagreed.

Nielsen A.C.J. found that privacy is at serious risk only where the information on the Court record is sufficiently sensitive to warrant protection of the larger societal interests, such as protecting sensitive information relating to stigmatized medical conditions and sexual assault. The information at issue that John Doe was a donor to the Canadian Taxpayers Federation, was not highly sensitive information that struck “at the core identify of John Doe”.

Nielsen A.C.J. found that the Applicants did not establish an important public interest with respect to confidentiality, holding that “[a]n expectation that confidentiality is guaranteed in spite of the common law requiring public participation in court proceedings is not a reasonable one”.

Lastly, Nielsen A.C.J. found that the Applicants cannot litigate anonymously. The public interest is engaged when the Plaintiff has “no choice but to engage the judicial process in order to obtain their remedy and the open court principle defeats the remedy prior to adjudication of the claim”. This was not the case here as John Doe’s participation in the proceedings would not have rendered any of the remedies in the Application meaningless.

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