A.B. v. Bragg Communications Inc. et al., (2011) 301 N.S.R.(2d) 34 (CA)

• Judge: MacDonald, C.J.N.S., Saunders and Oland, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: December 07, 2010
• Jurisdiction: Nova Scotia
• Citations: (2011), 301 N.S.R.(2d) 34 (CA);2011 NSCA 26

A.B. v. Bragg Com. Inc. (2011), 301 N.S.R.(2d) 34 (CA);

    953 A.P.R. 34

MLB headnote and full text

Temp. Cite: [2011] N.S.R.(2d) TBEd. MR.011

A.B. by her Litigation Guardian, C.D. (appellant) v. Bragg Communications Incorporated, a body corporate, The Halifax Herald Limited, a body corporate, and Global Television (respondents)

(CA 330605; 2011 NSCA 26)

Indexed As: A.B. v. Bragg Communications Inc. et al.

Nova Scotia Court of Appeal

MacDonald, C.J.N.S., Saunders and Oland, JJ.A.

March 4, 2011.

Summary:

The applicant asserted that an unidentified perpetrator created a fake Facebook profile, which included a photograph of the applicant and other particulars that identified her. The profile discussed the applicant's physical appearance and weight, and allegedly included scandalous sexual commentary of a private and intimate nature. The applicant commenced three applications: one to abridge the notice period required respecting an application for relief brought pursuant to Civil Procedure Rule 5.06; one to use pseudonyms and for a publication ban concerning the substance of the defamatory statements made about the applicant; and one for an order requiring that Bragg Communications provide information in its possession regarding the identity of the person(s) who used an IP address on a specified date and time.

The Nova Scotia Supreme Court, in a decision reported at 293 N.S.R.(2d) 222; 928 A.P.R. 222, exercised its discretion to abridge the notice period. The court allowed the application for disclosure, but denied the application for a publication ban and the use of pseudonyms. The applicant appealed and moved for orders permitting the use of pseudonyms for the purposes of the appeal and for a stay of the judgment below or a publication ban. The applicant also requested that her appeal be set down for hearing. The media respondents who had participated in the initial motion did not consent to the orders sought and took no position on the motion.

The Nova Scotia Court of Appeal, per Oland, J.A., in a decision reported at 293 N.S.R.(2d) 56; 928 A.P.R. 56, allowed the motion for the use of pseudonyms and for a publication ban on the actual words in the fake Facebook profile of the applicant pending the disposition of the appeal. The court set the appeal down for hearing.

The Nova Scotia Court of Appeal dismissed the appeal. The court continued the publication ban for 60 days or such further time as the Court of Appeal or the Supreme Court might direct.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Courts - Topic 1404

Administration - General - Public access to judicial proceedings (incl. court records) - The applicant asserted that an unidentified perpetrator created a fake Facebook profile, which included the applicant's photograph and other particulars that identified her - The profile discussed the applicant's physical appearance and weight, and allegedly included scandalous sexual commentary of a private and intimate nature - The applicant applied to use pseudonyms and for a publication ban concerning the substance of the defamatory statements made about her - A chambers judge dismissed the application - The applicant appealed - The Nova Scotia Court of Appeal stated that the chambers judge was required to begin his analysis with a recognition that open, unrestricted public access to the court's proceedings and records was to be the rule, and any limitation thereof, the exception - There was no burden upon the respondents to show why the orders sought ought to be declined - Rather, the applicant had the onus of producing sufficient evidence to persuade the judge that she deserved the court's protection, and that the judge ought to limit public access in order to achieve justice - That burden was significant - To even meet the first prong of the test, the applicant had to demonstrate, from solid evidence, that there was a real and substantial risk which posed a serious threat to the proper administration of justice and that her claim for relief was the only way to prevent that risk - To that legal matrix, the judge was also required to address the law of defamation and its roles in protecting a person's reputation from harm or unjustified assault - See paragraphs 38 to 52.

Courts - Topic 1404

Administration - General - Public access to judicial proceedings (incl. court records) - The applicant asserted that an unidentified perpetrator created a fake Facebook profile, which included the applicant's photograph and other particulars that identified her - The profile discussed the applicant's physical appearance and weight, and allegedly included scandalous sexual commentary of a private and intimate nature - The applicant applied to use pseudonyms and for a publication ban concerning the substance of the defamatory statements made about her - A chambers judge dismissed the application - The applicant appealed, asserting that the chambers judge ignored the fact of her youth and ought to have seized upon her minority as a basis for allowing the application - The applicant urged the court to use the "best interest of the child" test - The Nova Scotia Court of Appeal held that such a universally recognized family law principle was not applicable - The applicant appeared to suggest that her age (15 years) and vulnerability as a minor should override or trump the open court principle - The chambers judge was well aware of her age - The mere fact of the applicant's age did not establish any kind of special vulnerability such that the court should intervene and place her interest above the constitutional rights of others - Age was simply a circumstance, among many other factors, to be considered - A defamation action was one of those unique proceedings where issues of fact had to be tried with a jury - The application was not analogous to applications brought to shield the identity of victims of sexual assault - Subjective feelings of discomfort could not be the test for anonymity - The applicant instigated these proceedings, thereby choosing to participate in a public forum where the trial might be attended by an interested public, and reported on by a free and independent press - Restrictions which might otherwise apply in family law, or crimes of a sexual nature, did not apply - It would be contrary to the public interest in a case of this kind to permit the plaintiff to pursue her claim anonymously, with her identity kept secret - See paragraphs 64 to 86.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - Parens patriae jurisdiction - The applicant asserted that an unidentified perpetrator created a fake Facebook profile, which included a photograph of the applicant and other particulars that identified her - The profile discussed the applicant's physical appearance and weight, and allegedly included scandalous sexual commentary of a private and intimate nature - The applicant applied to use pseudonyms and for a publication ban concerning the substance of the defamatory statements made about her - A chambers judge dismissed the application - The applicant appealed, asserting that the chambers judge erred in failing to exercise his parens patriae jurisdiction so as to take into account the distinctive vulnerability of children - The Nova Scotia Court of Appeal held that the assertion failed for a number of reasons - First, the court could not understand how fault was to be laid at the feet of the chambers judge for "failing" to initiate a form of relief which was not raised in argument and yet which formed the basis of the applicant's principal ground of appeal - While the courts possessed a residual parens patriae jurisdiction to shelter from harm those persons requiring such protection, the power was subject to limits - The Supreme Court of Canada observed in Re Eve that parens patriae jurisdiction had to be exercised with great care and only for the benefit and protection of persons under disability - The Court of Appeal also declared that the jurisdiction was to be limited to filling in legislative gaps or situations requiring judicial review - Neither of those situations applied here - Finally, parens patriae was not to be invoked to circumscribe the Rules of Civil Procedure - See paragraphs 53 to 63.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - Parens patriae jurisdiction - The applicant asserted that an unidentified perpetrator created a fake Facebook profile, which included a photograph of the applicant and other particulars that identified her - The profile discussed the applicant's physical appearance and weight, and allegedly included scandalous sexual commentary of a private and intimate nature - The applicant applied to use pseudonyms and for a publication ban concerning the substance of the defamatory statements made about her - A chambers judge dismissed the application - The applicant appealed, asserting that the chambers judge erred by failing to find that the publication of the alleged defamatory statements constituted evidence of a serious risk of harm - The Nova Scotia Court of Appeal dismissed the appeal - The applicant's assertion confused the steps required to satisfy the prerequisites for a publication ban with the stages of proof when trying a defamation action before a jury - The applicant's failure to lead any evidence of harm or risk of harm to herself was fatal to her application - To obtain a publication ban or confidentiality order, the real and substantial risk of serious threat to the proper administration of justice had to be "well-grounded in the evidence" - The chambers judge appreciated that distinction - The judge recognized that inconvenience or embarrassment was not the test - Any "harm" to the applicant in being required to pursue her action, fully identified and in public, was speculative - It did not qualify as a public interest - Rather, the public was entitled to know whether the impugned words were defamatory - It was important for the public to be able to view the false Facebook profile in its entirety - The judge had regard to those varying interest when conducting the requisite balancing analysis - The court was not persuaded that the appeal's dismissal would produce a chilling effect, such that people would be reluctant to complain about on-line internet bullying - It would be speculative to suppose such a result - See paragraphs 87 to 100.

Evidence - Topic 16

General and definitions - Ban on publication - [See both Courts - Topic 1404 and both Courts - Topic 2004 ].

Practice - Topic 576

Parties - Persons unknown or not named - Use of a pseudonym or initials - [See both Courts - Topic 1404 and both Courts - Topic 2004 ].

Practice - Topic 5003

Conduct of trial - General principles - Ban on publication - [See both Courts - Topic 1404 and both Courts - Topic 2004 ].

Practice - Topic 5779

Judgments and orders - Interlocutory or interim orders or judgments - What constitutes - The applicant asserted that an unidentified perpetrator created a fake Facebook profile, which included a photograph of the applicant and other particulars that identified her - The profile discussed the applicant's physical appearance and weight, and allegedly included scandalous sexual commentary of a private and intimate nature - The applicant applied to use pseudonyms and for a publication ban concerning the substance of the defamatory statements made about her - A chambers judge dismissed the application - The applicant appealed, asserting that the chambers judge's decision had a final and terminating effect on the entire proceeding and disposed of all of the rights which were at issue - Accordingly, she asserted that the appropriate standard of review was whether there was an error in law resulting in an injustice - She asserted that ultimately, the decision was reviewable for correctness - The Nova Scotia Court of Appeal rejected the assertions - There was no common law right to confidentiality - The applicant retained the full right to proceed - She was simply denied the privilege of doing so anonymously - The impugned decision was an interlocutory discretionary ruling to which deference was owed - Unless the applicant could show an error in principle or a patent injustice, the court would not intervene - See paragraphs 26 to 36.

Practice - Topic 5782

Judgments and orders - Interlocutory or interim orders or judgments - Appeals - [See Practice - Topic 5779 ].

Practice - Topic 5782

Judgments and orders - Interlocutory or interim orders or judgments - Appeals - The Nova Scotia Court of Appeal stated that "Our jurisprudence recognizes that trial judges serve at the front lines of our justice system. They dispose of hundreds of cases in court rooms across the country every day. To do so they must act fairly, expeditiously, and decisively. They have broad powers to carry out the duties expected of them. One such power is the judicial exercise of discretion. Whenever a judge's decision springs from the exercise of discretion, an appellate court will be loathe to intervene. The reasons are obvious. First, judges are presumed to know the law. They have an acquired expertise in determining facts from the evidence, and ought to be accustomed to applying the law to the facts to achieve a just result. In practically every case, the application of discretion will permeate the decision-making process. On appeal such discretion will not be questioned lightly. Second, trial judges enjoy a special advantage in having presided over the proceedings, first hand. Their exposure to the witnesses and counsel is direct, and occurs in real time, a benefit not shared by appellate judges who are largely confined to reviewing a transcript, occasionally enhanced with the clarity of hindsight. Third, the cost of litigation is huge. Appeals from interlocutory matters incur delay and added expense to the parties, to say nothing of the burden upon the court's own resources and other proceedings in the system waiting to be tried. ... For these reasons, appellate courts are restrained in choosing to intervene. Absent an error in law or a manifest injustice we will decline to do so. The threshold for seeking reversal is high. It is not a soft or casual target. Any party seeking to set aside an interlocutory discretionary order has a heavy onus. Litigants should be reminded that it is not a burden which will be satisfied easily." - See paragraphs 32 and 33.

Practice - Topic 5782

Judgments and orders - Interlocutory or interim orders or judgments - Appeals - The Nova Scotia Court of Appeal stated that "There is a subtle but important, and to some perhaps, peculiar distinction between the varying standards of review applied to an interlocutory discretionary order, depending on whether it has a terminating effect, or not. If it does, then the question for our consideration is whether the ruling manifests an error of law and leads to a patent injustice. If it does not have such a final and terminating effect, the inquiry on appeal is whether the decision reveals an error of law or a patent injustice. ... The distinction seems counterintuitive. One would suppose that if the ruling were seen as putting an end to the proceeding, the threshold would be lower, thereby permitting the appellant to argue either an outcome caused by an error in principle, or leading to an injustice. Yet that lesser standard is only applied when the interlocutory discretionary ruling is not seen to have produced such a terminating result. ..." - See paragraphs 34 and 35.

Practice - Topic 8804

Appeals - General principles - Duty of appellate court regarding discretionary orders - [See Practice - Topic 5779 and second and third Practice - Topic 5782 ].

Practice - Topic 8824

Appeals - General principles - Duty of appellate court re interim orders - [See Practice - Topic 5779 and second and third Practice - Topic 5782 ].

Cases Noticed:

Martell v. McAlpine (Robert) Ltd. (1978), 25 N.S.R.(2d) 540; 36 A.P.R. 540 (C.A.), refd to. [para. 33].

Exco Corp. v. Nova Scotia Savings & Loan Co. et al. (1983), 59 N.S.R.(2d) 331; 125 A.P.R. 331 (C.A.), refd to. [para. 33].

Nova Scotia (Attorney General) v. Morgentaler (1990), 96 N.S.R.(2d) 54; 253 A.P.R. 54 (C.A.), refd to. [para. 33].

Nova Scotia (Attorney General) v. Foundation Co. of Canada, [1990] N.S.J. No. 307 (C.A.), refd to. [para. 33].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 41].

R. v. Mentuck (C.G.), [2001] 3 S.C.R. 442; 277 N.R. 160; 163 Man.R.(2d) 1; 269 W.A.C. 1; 2001 SCC 76, refd to. [para. 41].

Sierra Club of Canada v. Canada (Minister of Finance) et al. (2002), 287 N.R. 203; 2002 SCC 41, refd to. [para. 46].

Malhab v. Diffusion Métromédia CMR inc. et al. (2011), 412 N.R. 1; 2011 SCC 9, refd to. [para. 49].

Eve, Re, [1986] 2 S.C.R. 388; 71 N.R. 1; 61 Nfld. & P.E.I.R. 273; 185 A.P.R. 273, refd to. [para. 58].

Children and Family Services of Colchester County v. K.T. (2010), 294 N.S.R.(2d) 379; 933 A.P.R. 379; 2010 NSCA 72, refd to. [para. 60].

Nova Scotia (Minister of Community Services) v. N.N.M. and R.D.M. (2008), 268 N.S.R.(2d) 109; 857 A.P.R. 109; 2008 NSCA 69, refd to. [para. 60].

Beson et al. v. Director of Child Welfare (Nfld.), [1982] 2 S.C.R. 716; 44 N.R. 602; 39 Nfld. & P.E.I.R. 246; 111 A.P.R. 246, refd to. [para. 60].

K.V.P. v. T.E., [2001] 2 S.C.R. 1014; 275 N.R. 52; 156 B.C.A.C. 161; 255 W.A.C. 161; 2001 SCC 60, refd to. [para. 62].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 72].

MacIntyre v. Nova Scotia (Attorney General), Grainger and Canada (Attorney General) et al., [1982] 1 S.C.R. 175; 40 N.R. 181; 49 N.S.R.(2d) 609; 96 A.P.R. 609, refd to. [para. 73].

Scott v. Scott, [1913] A.C. 417 (H.L.), refd to. [para. 74].

Named Person v. Vancouver Sun - see Vancouver Sun et al. v. Canada (Attorney General) et al.

Vancouver Sun et al. v. Canada (Attorney General) et al. (2007), 368 N.R. 112; 368 B.C.A.C. 1; 409 W.A.C. 1; 2007 SCC 43, refd to. [para. 75].

Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996] 3 S.C.R. 480; 203 N.R. 169; 182 N.B.R.(2d) 81; 463 A.P.R. 81, refd to. [para. 77].

Doe v. Church of Jesus Christ of Latter-Day Saints in Canada et al. (2003), 341 A.R. 395; 2003 ABQB 794, refd to. [para. 81].

A.B. v. Stubbs et al. (1999), 97 O.T.C. 15; 175 D.L.R.(4th) 370 (Sup. Ct.), refd to. [para. 82].

Grant et al. v. Torstar et al., [2009] 3 S.C.R. 640; 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, refd to. [para. 95].

Osif v. College of Physicians and Surgeons (N.S.) (2008), 271 N.S.R.(2d) 370; 867 A.P.R. 370; 2008 NSCA 113, refd to. [para. 97].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 85.01 [para. 39]; rule 85.04 [para. 40].

Rules of Civil Procedure (N.S.) - see Civil Procedure Rules (N.S.).

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.).

Authors and Works Noticed:

Brown, Raymond E., The Law of Defamation in Canada (2nd Ed. 2009) (Looseleaf), vol. 3, pp. 25-2, 25-3 [para. 95].

Downard, Peter A., Libel (2nd Ed. 2010), p. 34 [para. 51].

Madden, Mike, Conquering the Common Law Hydra: A Probably Correct and Reasonable Overview of Current Standards of Appellate and Judicial Review (2010), 36 Adv. Q. 269, generally [para. 35].

Counsel:

Michelle C. Awad, Q.C., and Daniel W. Watt, for the appellant;

Nancy G. Rubin and Maggie A. Stewart, for the respondent, Halifax Herald;

Alan V. Parish, Q.C., for the respondent, Global Television.

This appeal was heard on December 7, 2010, at Halifax, Nova Scotia, by MacDonald, C.J.N.S., Saunders and Oland, JJ.A., of the Nova Scotia Court of Appeal. Saunders, J.A., delivered the following reasons for judgment for the court on March 4, 2011.