December 2, 2024
Fraser v. Nova Scotia Barristers’ Society 2024 NSCA 94

The Nova Scotia Court of Appeal released a decision today on lawyer Donn Fraser, dealing in part with his request to seal the court file: Fraser v. Nova Scotia Barristers’ Society – 2024 NSCA 94.

Mr. Fraser unsuccessfully appealed his interim suspension from practice pending an investigation of alleged conduct unbecoming. Among other things he argued the Legal Profession Act says complaints are confidential, so to the extent anything in the court file was part of the Complaints Investigation Committee’s file it should be sealed.

At paragraphs 142-160 the court disagreed, at least in part.

The Act makes complaint investigations confidential by default (at least until a hearing, which is open). But disclosure at an interim stage is permitted as an incident of the “administration of this Act.” Administration, the court found, includes an appeal. The court did not feel itself legislation-bound, so continued to Sherman.

Applying Sherman, documents playing a role in the appeal reasoning or already public should be open. But the Sherman test applies “subject only to valid legislative enactments,” and the Act is that. So documents from the investigation file that played no role in the appeal reasoning, and not already public, remained confidential (and therefore were placed under seal).

It’s a bit legislation-specific but this is a good example of an appellate court working through confidentiality language in legislation, the open court principle and the “subject only” language in Sherman.