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2022 FC 1115

Paras 20-22 of this decision, from the Federal Court, confirm that the test to “remove” documents from a court file is the SCC decision in Sherman.

“[20] As noted by the CBC, removal of the submissions from the CTR would offend the open court principle. In Sherman Estate at para 38, the Supreme Court of Canada recast the test for discretionary limits on the open court principle. The Court explained that this test applies to all discretionary limits including publication bans, sealing orders and redactions. The person seeking an exception to the open court principle—in this case, the Applicants—must establish that: (1) 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 reasonably alternative measures will not prevent this risk; and (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

[21] The Applicants have not established any elements of this test. Their position is simply that the inclusion of the submissions in the record is not necessary. I agree with the CBC that the public is entitled to know what the CMHR considered in deciding to provide the documents with redactions, as is this Court.

[22] The Applicants appear to wish to renege from their submissions, either in whole or in part, yet their arguments on this Application raise the same or similar arguments to those advanced in their submissions to the CMHR. In addition to the lack of a legal or other basis to remove the submissions from the CTR, the removal of the submissions would not disassociate the  Applicants from the arguments made to the CMHR.”