September 12, 2019
Hong v Lavy 2019 NSSC 271
The Applicants were seeking to withdraw a set of 18 affidavits from the Court file. The purpose of their request was to maintain the confidentiality of commercial information related to the parties and personal information related to third parties. The Applicants argued that Civil Procedure Rule 85 does not apply because the remedy they were seeking differs from the remedy contemplated in that Rule. While a discretionary order permitting withdrawal is not an established example of a confidentiality order, both the purpose and effect are the same: the public is no longer able to access information that previously belonged in a court file.
While a motion on consent does reduce concern over prejudice to either party, consent alone is not sufficient. The Court must also consider policy concerns that militate against withdrawal, including the public interest in the open court principle. In doing so, the Court should consider the Dagenais/Mentuck test, which the Nova Scotia Court of Appeal has held “applies to all discretionary court orders that limit freedom of expression and freedom of the press in relation to legal proceeding”.
Only a public interest in confidentiality of commercially sensitive information will suffice to limit the public interest in open courts. As the parties here plead only their private interests relative to the commercial information, they do not meet the first stage of the test. There is precedent in Nova Scotia to limit public access to the private information of non-parties but this also is subject to consideration of the importance of the legal interest at stake and the minimal infringement of the proposed order on the open court principle.
The Applicants argue that they do not seek to limit the freedom of expression by the press during the proceeding, as the application is adjourned without date, and in all probability will be dismissed. Yet they have not provided evidence suggesting that the Merits Affidavits are not part of the Court record for the purposes of Rule 85, nor have they cited any authority that indicates the public interest in the open court principle is limited either to ongoing proceedings or to court proceedings that result in a judicial decision.
Although the evidence in the present case does not suggest an attempt to evade cross-examination or to prejudice the other party, it does suggest an attempt to circumvent established remedies and their associated requirements. The Applicants’ submissions suggest that their primary aim is to protect the confidentiality of their private commercial interests. It is not appropriate to grant a discretionary order designed to circumvent well-established law nor is it appropriate to infringe on a public interest for anything short of another public interest.
Judicial discretion must be exercised in keeping with constitutional principles, including the minimal impairment of Charter rights. In order to protect the T4s or credit card information of non-parties, or even including their employment and educational history, less invasive remedies are available than withdrawal of 18 affidavits.