Litigants in estates proceedings are sometimes concerned that sensitive and private information – though relevant to the court proceedings – will be made publicly available once filed with the court. Litigants may wonder whether that information can be kept “under wraps”. Indeed, our courts retain the ability to prevent information and documentation from being available to the public; the provisions restricting public access to hearings and documents are found in sections 135 and 137 of the Courts of Justice Act, R.S.O. 1990, c. C.43. However, the test for restricting public access is not an easy one to meet, as discussed by Justice Brown (as he then was) in the decision J.B. Trust (Trustees of) v. J.B. (Litigation Guardian of).
One of the applicants in this case, C.L.B., had two minor sons, J.B. and D.B. The minors’ father (and the applicant’s husband) died in the 9/11 attack on the World Trade Center. As a result of their father’s death, both of the minors received compensation from the September 11th Victim Compensation Fund. A trust was set up to hold the funds. In 2006, a court order was made requiring the trustees of the trust to pass their accounts every three years. Importantly, for the purpose of Justice Brown’s later decision, the 2006 Order also provided that the proceeding “be treated as confidential and the court file be sealed and not form part of the public record…”
Prior to commencing the first application to pass their accounts, the trustees sought orders that their application to pass accounts be treated as confidential, that the court file be sealed and that “all future proceedings for the passing of accounts” for the trusts be treated in the same way.” The trustees submitted that sealing the court file was required in order to protect the minors from publicity and financial or other harm, given the notoriety of the events of September 11, 2001 and the significant financial compensation they received.
In considering the trustees’ motion, Justice Brown commented that one cornerstone of the rule of law in Canada “is the operation of an open and transparent court system.” Public policy favours openness in order to maintain the public’s confidence in its integrity and their understanding of the administration of justice. Access by the public and media to the courts (and court documents), the Supreme Court of Canada has found, is a way by which the judicial process can be criticized and scrutinized.
Accordingly, access to court records should only be curtailed in restricted circumstances, when a two-part test set out in the Supreme Court of Canada’s 2002 decision of Sierra Club of Canada v. Canada (Minister of Finance) 2002 SCC 41 (CanLII) is met. First, the order must be necessary in order to prevent a serious risk to an important interest, in the context of litigation, because reasonably alternative measures will not prevent the risk. Secondly, the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, must 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, Justice Brown found that the trustees did not meet the Sierra Club test. There was no evidence about what sort of harm might occur should a sealing order not be granted. While the compensation payments received by the minors were significant, the amounts at issue were not so significant to cause concern (and less than settlement funds received by many minors in personal injury matters). With respect to the risk of publicity to the two minors (another ground for sealing offered by the trustees), his Honour found there was insufficient evidence before him to support this argument.
In the end, Justice Brown found that there were other measures available to address the risk of publicity to the minors on the application to pass accounts. These measures included permitting the use of the initials of the trustees, the trusts and the two minors instead of their full legal names in the title of proceedings as well as in any affidavit materials, and any accounts filed on the proposed application to pass accounts. Indeed, this was what Justice Brown ordered, along with an Order sealing the motion material, and costs payable from the trust to the trustees for the motion.
Thanks for reading.