August 16, 2012
Coltsfoot Publishing Limited v Foster-Jacques, 2012 NSCA 83

Ms. Foster-Jacques and Mr. Jacques are the Petitioner and Respondent in a divorce proceeding before the Supreme Court (Family Division). They filed financial information with the court as per Rule 59. Frank Magazine (Coltsfoot is the publisher) requested access to the file under Rule 59.60(4) and gave notice to the Jacques:

TAKE NOTICE that Frank Magazine wishes to obtain access to your file and gives 20 days advance notice pursuant to Civil Procedure Rule 59.60(4).

AND FURTHER TAKE NOTICE that any party to the proceeding may apply to the court by way of motion, as provided in Civil Procedure Rule 59.60(5) for an order sealing all or any part of the Court file.

AND FURTHER TAKE NOTICE that if no such motion is made, the non-party may be granted access to the file, subject to any terms or conditions set by the court.

Mr. Jacques moved for “an order to seal the Court file in this proceeding, as well as a publication ban”, and Ms. Foster-Jacques moved for an order “sealing the entire court file”. Neither party submitted any affidavits on their motions. The motions were heard in the lower court and no witnesses testified.

The lower court judge granted the sealing order, citing the risk of identity theft and stated that public and media access to the hearing and to the judge’s written reasons satisfied the open court principle.

According to Civil Procedure Rule 59, a judge “may order” that the file be sealed. However, as stated by the Nova Scotia Court of Appeal judgment, at para 27:

…in this case the judge’s task was to determine whether (1) the sealing order was necessary to prevent a serious risk to an important interest, because reasonable alternative measures would not alleviate the risk, and (2) the salutary effects of the sealing order outweigh its deleterious effects, that include a limitation on constitutionally protected freedom of expression. On the first point, the important interest must be (a) real, substantial and well grounded in the evidence, and (b) involve a general principle of significance to the public, not just of personal interest of the parties, while (c) the judge’s consideration of reasonable alternative measures must restrict the confidentiality order as much as possible while preserving the important interest that requires confidentiality.

With respect to the evidence required to support a confidentiality order, the NSCA states, at para. 38:

My reading of the authorities…is that the facts to support a confidentiality order must be established by evidence (that is assessed on the balance of probabilities), not by bald assertions or unsworn generalizations, and those facts in turn must establish a real and substantial risk to an important public interest.

At para. 53, the judgment states:

Under Sierra Club’s test, neither the media nor the public would be deleteriously affected, to any material degree, by not having access to the information I have listed in paras 47-48. On the other hand, a precedent that extends beyond those items, to seal the entire court file as a matter of course in divorce proceedings before the Family Division, would inflict a stinging wallop on the rationale that underlies the open court principle.

The judgment goes on to state, at para. 54, that the “key issue in this case is whether, under Sierra Club’s test, there is a reasonable alternative, less restrictive than sealing the entire court file, that would guard against identity theft…”

The NSCA points out, at para. 61, that “Coltsfoot’s reply brief to the judge … undertook not to publish those items. The judge’s decision makes no reference to this undertaking.

In writing for the NSCA, Justice Fichaud states, at para. 66:

In my view, an order that prohibited Coltsfoot from publication, disclosure, communication or use of the specific items I have listed above (paras 47-48) was a reasonable alternative to the sealing order under the Sierra Club principle. The judge’s rejection of this option was an error of law.

Fichaud J. goes on to state that the lower court judge also rejected the option of redaction, as being “cumbersome and costly”. And, state’s that “there is no evidence of what effort or cost would be involved with the redaction of this court file for the items I have listed above (para 47-48).”

Justice Fichaud provides a comprehensive list of the kinds of information that would be subject to either a partial publication ban, or redaction, in order to guard against the risk of identity theft, in paras. 47 and 48.

Fichaud J., concludes by stating that “the judge erred in law in her interpretation and application of the open court principle.”