Publication Ban

Law Society of Upper Canada v. Nicolas Xynnis, 2014 ONLSAP 9 (CanLII)

[39] Rule 18.02(c) provides for the possibility of closed hearings (and by implication, publication bans) where:

intimate financial or personal matters or other matters may be disclosed of such a nature, having regard to the circumstances, that the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public.

[40] In some cases, a publication ban or closed hearing may be justified to protect information about persons who are not parties to the litigation and who are not protected by privilege. For example, in Melnick, supra, the issue was the lawyer applicant’s sexual relationship with a student while he had been a teacher, for which he had been convicted. Emails between him and the student were received in the absence of the public, to protect the interests of the victim.

[41] Children, in particular, are entitled to special protection of their privacy: Bragg, supra, at paras. 17-20. Various statutes recognize that addressing this vulnerability in particular contexts takes priority over open justice. For example, s. 43 of the Child and Family Services Act, R.S.O. 1990, c. C.11, establishes a presumption that child protection hearings are closed subject to a limited exception for media, and prevents anyone from identifying the child or a member of the child’s family. Part 6 of the Youth Criminal Justice Act, S.C. 2002, c. 1, contains various restrictions on the identification of children and young persons who are accused, victims or witnesses in proceedings under that legislation.

[42] Similarly, the effect on third parties who are complainants or victims in sexual assault matters, or the disclosure of confidential commercial information (Law Society of Upper Canada v. Richard Keith Watson, 2012 ONLSHP 53, Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41) have been legally recognized as leading to harm that could outweigh openness, applying the Dagenais/Mentuck test.

[43] It is common for personal information about licensees and their families to be raised in Tribunal proceedings. In capacity applications, the licensee’s health is the focus of the proceeding. In other types of applications, licensees and licensee applicants often introduce information about their health and other personal circumstances to explain their actions, in particular since extenuating personal circumstances are one of the factors in determining penalty.

[44] As held in M.E.H.¸ supra, the desire to avoid publicity, effect on one’s career, or embarrassment of having justice done in public when one is a party to litigation, is not sufficient to meet the first branch of the test. Nor is it sufficient to refer to the general stigma, which unfortunately still exists in our society, about mental health issues and addictions or other personal health issues. While such stigma exists, it does not justify a departure from open justice absent evidence of specific harm and a tie between that harm and the administration of justice.

[45] The closer the facts sought to be shielded come to the core of the issues before the Tribunal and the actions of the parties to the proceeding, the harder it will be to justify restrictions on openness. For example, the more directly the nature of the evidence bears on the defence of a licensee or a factor related to penalty, the more cautious the Tribunal should be in restricting openness. Similarly, restrictions on publishing information about the identity or actions of employees of the Law Society can only be justified in the most exceptional of cases.

[46] Where facts are at the heart of the case and are about the subject of the proceeding, limits on transparency should be imposed on such information only in particular and unusual circumstances, based on evidence that shows a risk of harm to the administration of justice through evidence based upon the specific facts of the case.