Foster-Jacques v. Jacques, (2012) 320 N.S.R.(2d) 166 (CA)

• Judge: Saunders, Fichaud and Beveridge, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: May 22, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 320 N.S.R.(2d) 166 (CA);2012 NSCA 83

Foster-Jacques v. Jacques (2012), 320 N.S.R.(2d) 166 (CA);

    1014 A.P.R. 166

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. AU.026

Coltsfoot Publishing Limited (appellant) v. Sharon J. Foster-Jacques and Hector J. Jacques (respondents)

(CA 367939; 2012 NSCA 83)

Indexed As: Foster-Jacques v. Jacques

Nova Scotia Court of Appeal

Saunders, Fichaud and Beveridge, JJ.A.

August 16, 2012.

Summary:

The petitioner and respondent (parties) in a divorce proceeding both requested an order to seal the contents of their divorce file. They did so after having received a request from the media (Coltsfoot Publishing) to examine the file under Civil Procedure Rule 59.60(4). At issue was whether rules 85.04 and 85.05 applied to a motion for a sealing order in the Family Division, and if yes, should the court exercise its discretion to deny notice to the media?

The Nova Scotia Supreme Court, Family Division, in a decision reported at 302 N.S.R.(2d) 329; 955 A.P.R. 329, held that rules 85.04 and 85.05 applied and that notice should be given to the media pursuant to those rules.

The Nova Scotia Supreme Court, Family Division, in a decision reported at 306 N.S.R.(2d) 51; 968 A.P.R. 51, granted the motions to seal the file.

The Nova Scotia Supreme Court, Family Division, in a decision reported at 308 N.S.R.(2d) 368; 976 A.P.R. 368, awarded $300 costs of the first motion to Coltsfoot Publishing. The court awarded costs of the second motion to the parties in the amount of $1,000 each. Coltsfoot Publishing appealed, invoking the open court principle.

The Nova Scotia Court of Appeal allowed the appeal and overturned the sealing order on conditions. The court overturned the trial judge's costs awards and instead ordered that the petitioner and respondent each pay Coltsfoot costs of (1) $750 for the proceeding in the Supreme Court and (2) a further $500 for the appeal.

Civil Rights - Topic 1800

Freedom of speech or expression - General principles - General - [See first Courts - Topic 4806 ].

Civil Rights - Topic 1859.1

Freedom of speech or expression - Limitations on - Access to court documents - [See fourth Courts - Topic 4806 ].

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings (incl. broadcasting and publication bans) - [See second and fourth Courts - Topic 4806 ].

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings (incl. broadcasting and publication bans) - Both parties requested an order to seal the contents of their divorce file - Neither party filed any evidence in support of their motion - MacDonald, J., granted the motions - Coltsfoot Publishing appealed, relying on the open court principle - The Nova Scotia Court of Appeal allowed the appeal - The court stated, inter alia, that it agreed "with the judge that the respondents' preference for personal and financial privacy, and to be free from embarrassment during their divorce is insufficient, in this case, to constitute a serious risk to an important public interest which outweighs the deleterious effect of confidentiality, under the principles from Dagenais, Mentuck and Sierra Club. ... That is not to say that a divorce file never may be subject to a partial or complete sealing order. ... Such an order would require evidence that establishes a serious risk of harm beyond mere embarrassment, particularly but not exclusively where children are involved, and the inadequacy of alternative measures to alleviate that risk. Here, that identified risk is identity theft, and there is no evidence that a partial publication ban or redaction would inadequately protect the respondents from any risk of identity theft." - See paragraphs 97 and 98.

Courts - Topic 1404

Administration - General - Public access to judicial proceedings (incl. court records) - [See second Civil Rights - Topic 2486 and second and fourth Courts - Topic 4806 ].

Courts - Topic 1408

Administration - General - Sealing of documents - [See second Civil Rights - Topic 2486 and second and fourth Courts - Topic 4806 ].

Courts - Topic 1444

Administration - Documents filed by parties - Public right of access - Exceptions - [See second and fourth Courts - Topic 4806 ].

Courts - Topic 4806

Common law - General - Hearings - Open court - The Nova Scotia Court of Appeal stated that "The open court principle derived from the common law ... But it is now constitutionally embedded as an element of freedom of expression, including freedom of the press and other media, in s. 2(b) of the Charter ..." - See paragraph 24.

Courts - Topic 4806

Common law - General - Hearings - Open court - The Nova Scotia Court of Appeal discussed the elements of the open court principle in the context of a request by both parties to seal the contents of their divorce file - The court stated that "To summarize, 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." - See paragraphs 25 to 27.

Courts - Topic 4806

Common law - General - Hearings - Open court - The Nova Scotia Court of Appeal stated that "Private disclosure and discovery, purely between the parties, carries an enforceable implied undertaking of confidentiality. Because that private process does not involve the court, it does not engage the open court principle. In Juman v. Doucette, [2008] 1 S.C.R. 157, Justice Binnie for the Court ... referred to the principle of judicial accountability that underlies the open court principle, and said: 'No such questions of state accountability arise in pre-trial discoveries. The situations are simply not analogous.'" - The court disagreed with the submission "that the only purpose of the open court principle is to educate the public. Rather, its primary purpose, stated and reiterated by the Supreme Court of Canada, is to illuminate the avenue of accountability for the judicial system." - See paragraphs 83 and 85.

Courts - Topic 4806

Common law - General - Hearings - Open court - Both parties requested an order to seal the contents of their divorce file - Neither party filed any evidence in support of their motion - MacDonald, J., granted the motions - Coltsfoot Publishing appealed, relying on the open court principle - The Nova Scotia Court of Appeal stated that "Rules 59.19 to 59.27 advertently engage the court in the mandatory pre-trial acquisition of evidence. The court is enlisted as a warden to ensure that, in family proceedings, obtaining the information which is essential to the court's fact finding is not a costly battleground, lever of procrastination or 'game of hide-and-seek' ... The parties' court filings under Rule 59 are vital to the workings of the court's administration of justice for the divorcing litigants. So the rationale of accountability applies to those workings. I disagree with the judge's view and with [the husband's] submission that, in matrimonial disputes, the open court principle encompasses only what is audible to attendees in the courtroom and readable in the judge's decision." - See paragraphs 93 and 94.

Evidence - Topic 102

Degree, standard or burden of proof - Standard or degree of proof - Proof in civil cases - Both parties requested an order to seal the contents of their divorce file - Neither party filed any evidence in support of their motion - MacDonald, J., granted the motions - Coltsfoot Publishing appealed - Coltsfoot referred to comments by Iacobucci, J., in Sierra Club of Canada v. Canada (Minister of Finance) et al. (2001 S.C.C.) that the interest be "real and substantial" and the risk be "well grounded in evidence" and Canadian Broadcasting Corp. v. R. et al. (2010 Ont. C.A.) that the evidence be "convincing" and meet "rigorous standards" - Coltsfoot deduced that the burden of proof on the applicant for a confidentiality order exceeded the normal civil standard of balance of probabilities - The Nova Scotia Court of Appeal disagreed - In F.H. v. McDougall (2008 S.C.C.), the court pronounced "once and for all in Canada" that there was only one formal civil standard of proof, balance of probabilities, which was not shaded variably in different types of case, and in all cases the judge was to scrutinize the evidence with the same degree of care - The authorities established that the facts to support a confidentiality order had to be established by evidence (i.e., assessed on the balance of probabilities), not by bald assertions or unsworn generalizations, and those facts in turn had to establish a real and substantial risk to an important public interest - See paragraphs 28 to 37.

Evidence - Topic 2260

Special modes of proof - Judicial notice - Particular matters - Social conditions (incl. social facts) - Both parties requested an order to seal the contents of their divorce file - MacDonald, J., held that rules 85.04 and 85.05 applied to a motion for a sealing order in the Family Division, and granted notice to the media pursuant to those rules - Coltsfoot Publishing argued that the court could not make any decision about the public's expectations or the potential risk of identity theft without evidence provided by, for example, a polling company and a police officer - In addition the parties themselves had not provided an "affidavit" with facts supporting the proposition that they had an expectation of privacy respecting their personal identifiers - The trial judge rejected the media's argument and took judicial notice of the facts that it had used to support its analysis - The Nova Scotia Court of Appeal held that the trial judge erred in taking judicial notice of disputed adjudicative facts - The court set out a number of items that sufficiently satisfied the relaxed test for social facts in this case (i.e., identity theft was real, certain specified information could assist the use of identity theft to fraudulently access property, and certain specified information sometimes might not already be in the public domain) - It was not uncommon that access to a court file be on a condition that either redacted or banned publication of these items - If either party wished to urge that the risk of identity theft extended beyond the listed items, they should have discharged their burden of proof by adducing evidence to that effect - See paragraphs 39 to 54.

Family Law - Topic 22

Publication bans - When available - [See second and fourth Courts - Topic 4806 ].

Practice - Topic 3712

Evidence - Sealed evidence - When available - [See second and fourth Courts - Topic 4806 ].

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - [See third Courts - Topic 4806 ].

Practice - Topic 5001

Conduct of trial - General principles - Open court - General - [See all Courts - Topic 4806 ].

Practice - Topic 5003

Conduct of trial - General principles - Ban on publication - [See second and fourth Courts - Topic 4806 ].

Cases Noticed:

Innocente v. Canada (Attorney General) (2012), 315 N.S.R.(2d) 273; 998 A.P.R. 273; 2012 NSCA 36, appld. [para. 16].

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. 23].

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. 23].

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. 24].

Vancouver Sun et al. v. Canada (Attorney General) et al., [2007] 3 S.C.R. 253; 368 N.R. 112; 247 B.C.A.C. 1; 409 W.A.C. 1; 2007 SCC 43, refd to. [para. 24].

Canadian Broadcasting Corp. v. Canada (Attorney General) et al., [2011] 1 S.C.R. 65; 411 N.R. 75; 2011 SCC 3, refd to. [para. 24].

Vancouver Sun, Re - see Application Under Section 83.28 of the Criminal Code, Re.

Application Under Section 83.28 of the Criminal Code, Re, [2004] 2 S.C.R. 332; 322 N.R. 161; 199 B.C.A.C. 1; 326 W.A.C. 1; 2004 SCC 43, refd to. [para. 24].

Sierra Club of Canada v. Canada (Minister of Finance) et al., [2002] 2 S.C.R. 522; 287 N.R. 203; 2002 SCC 41, appld. [para. 24].

Globe and Mail v. Canada (Attorney General) - see CTVglobemedia Publishing Inc. v. Canada (Attorney General).

CTVglobemedia Publishing Inc. v. Canada (Attorney General) et al., [2010] 2 S.C.R. 592; 407 N.R. 202; 2010 SCC 41, refd to. [para. 24].

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. 30].

R. v. Toronto Star Newspapers Ltd. et al., [2005] 2 S.C.R. 188; 335 N.R. 201; 200 O.A.C. 348; 2005 SCC 41, refd to. [para. 31].

M.S.K. v. T.L.T. (2003), 168 O.A.C. 73 (C.A.), refd to. [para. 33].

Himel v. Greenberg et al., [2010] O.T.C. Uned. 2325; 2010 ONSC 2325, refd to. [para. 33].

K.A.R. v. S.L.D.G. (2009), 347 Sask.R. 9; 2009 SKQB 440 (Fam. Div.), refd to. [para. 33].

K.V.P. v. T.E. et al., [1998] B.C.T.C. Uned. 678 (S.C.), refd to. [para. 33].

C.S. v. M.S. (2007), 37 R.F.L.(6th) 373 (Sup. Ct.), refd to. [para. 33].

M.E.H. v. Williams et al. (2012), 287 O.A.C. 133; 2012 ONCA 35, refd to. [para. 33].

R.F. v. O.B., 2006 SKQB 496, refd to. [para. 33].

A.B. v. C.D., [2012] B.C.T.C. Uned. 267; 2012 BCSC 267, refd to. [para. 33].

CTV Television Inc. et al. v. R. et al. (2006), 208 Man.R.(2d) 244; 383 W.A.C. 244; 2006 MBCA 132, refd to. [para. 34].

R. v. Hogg - see CTV Television Inc. et al. v. R. et al.

Canadian Broadcasting Corp. v. R. et al. (2010), 271 O.A.C. 7; 2010 ONCA 726, refd to. [paras. 37, 91].

F.H. v. McDougall, [2008] 3 S.C.R. 41; 380 N.R. 82; 260 B.C.A.C. 74; 439 W.A.C. 74; 2008 SCC 53, refd to. [para. 38].

R. v. Find (K.), [2001] 1 S.C.R. 863; 269 N.R. 149; 146 O.A.C. 236; 2001 SCC 32, appld. [para. 41].

R. v. Spence (S.A.), [2005] 3 S.C.R. 458; 342 N.R. 126; 206 O.A.C. 150; 2005 SCC 71, appld. [para. 41].

Scott v. Scott, [1913] A.C. 417 (H.L.), refd to. [para. 77].

McPherson v. McPherson, [1936] A.C. 177, refd to. [para. 77].

Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; 102 N.R. 321; 103 A.R. 321, refd to. [para. 78].

Juman v. Doucette - see Doucette v. Wee Watch Day Care Systems Inc. et al.

Doucette v. Wee Watch Day Care Systems Inc. et al., [2008] 1 S.C.R. 157; 372 N.R. 95; 252 B.C.A.C. 1; 422 W.A.C. 1, dist. [para. 83].

Lac d'Amiante du Québec ltée v. 2858-0702 Québec Inc. et al., [2001] 2 S.C.R. 743; 274 N.R. 201; 2001 SCC 51, refd to. [para. 83].

Societe Radio-Canada v. Quebec (Procureur general) - see Canadian Broadcasting Corp. et al. v. Canada (Attorney General) et al.

Canadian Broadcasting Corp. et al. v. Canada (Attorney General) et al., [2011] 1 S.C.R. 19; 411 N.R. 23; 2011 SCC 2, refd to. [para. 88].

CTV Television Inc. v. Toronto Police Service et al. (2002), 157 O.A.C. 238 (C.A.), refd to. [para. 91].

R. v. Global News, [2011] O.J. No. 3361 (C.J.), refd to. [para. 91].

Canada (Attorney General) v. Almalki et al. (2010), 377 F.T.R. 186; 2010 FC 1106, refd to. [para. 91].

Toronto Star Newspapers Ltd. et al. v. Canada (2007), 308 F.T.R. 196; 2007 FC 128, refd to. [para. 91].

O'Brien v. O'Brien (2007), 312 N.B.R.(2d) 302; 806 A.P.R. 302; 2007 NBCA 22, refd to. [para. 93].

Chernyakhovsky v. Chernyakhovsky, [2005] O.T.C. Uned. 216 (Sup. Ct.), refd to. [para. 93].

Statutes Noticed:

Civil Procedure Rules (N.S.), 2009, rule 59 [para. 93]; rule 59.60 [para. 5].

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

Authors and Works Noticed:

Morgan, Edmund M., Judicial Notice (1943-44), 57 Harv. L. Rev. 269, generally [para. 43].

Counsel:

Alan V. Parish, Q.C., and R. Paul Thorne, for the appellant;

Gordon R. Kelly and Adrienne Bowers, for the respondent, Sharon J. Foster-Jacques;

William L. Ryan, Q.C., and Sara Scott, for the respondent, Hector J. Jacques.

This appeal was heard in Halifax, N.S., on May 22, 2012, by Saunders, Fichaud and Beveridge, JJ.A., of the Nova Scotia Court of Appeal. Fichaud, J.A., delivered the following reasons for judgment for the court on August 16, 2012.