Hollinger Inc. et al. v. Ravelston Corp. et al., 2008 ONCA 207

• Judge: Laskin, Juriansz and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 25, 2007
• Jurisdiction: Ontario
• Citations: 2008 ONCA 207;(2008), 235 O.A.C. 136 (CA)

Hollinger Inc. v. Ravelston Corp. (2008), 235 O.A.C. 136 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. MR.096

Hollinger Inc., Domgroup Ltd., 4322525 Canada Inc., 10 Toronto Street Inc. and Sugra Limited (plaintiffs/respondents) v. The Ravelston Corporation Limited, Ravelston Management Inc., 509643 N.B. Inc., 509644 N.B. Inc., 509645 N.B. Inc., 509646 N.B. Inc. 509647 N.B. Inc., Moffatt Management Inc., Black-Amiel Management Inc., Argus Corporation Limited, Conrad Black Capital Corporation, Hollinger Aviation Inc., Mowitza Holdings Inc., 364817 Ontario Limited, F.D. Radler Ltd., 1269940 Ontario Limited, 2753421 Canada Limited, Conrad M. Black, Barbara Amiel-Black, F. David Radler, John A. Boultbee, 1406684 Ontario Limited and Peter Y. Atkinson (defendants/respondents) and Bell Globemedia Publishing Inc., carrying on business as the Globe and Mail (proposed intervenor/appellant)

(C46351; 2008 ONCA 207)

Indexed As: Hollinger Inc. et al. v. Ravelston Corp. et al.

Ontario Court of Appeal

Laskin, Juriansz and Rouleau, JJ.A.

March 28, 2008.

Summary:

The plaintiffs obtained a Mareva injunction against Black and Amiel-Black. The motion judge made a protective order sealing the motion material. Bell Globemedia Publishing Inc. (the Globe) moved to intervene to set aside the protective order.

The Ontario Superior Court, in a decision reported at [2006] O.T.C. Uned. C01, dismissed the Globe's motion. The Globe appealed.

The Ontario Court of Appeal, Juriansz, J.A., dissenting in part, allowed the appeal, granting the Globe intervenor status for the limited purpose of challenging the protective order and remitting the balance of the Globe's motion to the Superior Court for a new hearing.

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings (incl. televising) - The plaintiffs obtained a Mareva injunction against Black and Amiel-Black - The motion judge made a protective order sealing the motion material - Bell Globemedia Publishing Inc. (the Globe) moved to intervene to set aside the protective order - The motion judge dismissed the Globe's motion - The Ontario Court of Appeal allowed the Globe's appeal, granting the Globe intervenor status for the limited purpose of challenging the protective order and remitting the balance of the Globe's motion to the Superior Court for a new hearing - Even though the motion judge refused to give the Globe intervenor status, he addressed the Globe's challenge of the protective order - The portion of the motion judge's decision that maintained the protective order was in the nature of obiter dicta and strongly linked to the decision on intervenor status - The protective order placed the court file out of reach of the public and the media - Because the motion judge refused to give the Globe, a media enterprise, intervenor status for the limited purpose of challenging the protective order, it was apparent that his analysis, as well as his exercise of discretion regarding maintaining the order, was affected - Without the media interest being factored into the analysis, the balancing of interests between the Globe's constitutionally entrenched freedom of expression and the Blacks' right to privacy was inevitably tainted - Having determined that the motion judge ought to have given the Globe intervenor status to challenge the order, it followed that the decision in its entirety had to be set aside - See paragraphs 121 to 125.

Civil Rights - Topic 2486

Freedom of the press - Limitations - Court proceedings (incl. televising) - [See Civil Rights - Topic 8364 and Practice - Topic 684 ].

Civil Rights - Topic 8364

Canadian Charter of Rights and Freedoms - Denial of rights - Burden of proof - The plaintiffs obtained a Mareva injunction against Black and Amiel-Black - The motion judge made a protective order sealing the motion material - Bell Globemedia Publishing Inc. (the Globe) moved to intervene to set aside the protective order - The motion judge dismissed the Globe's motion - The Ontario Court of Appeal allowed the Globe's appeal, granting the Globe intervenor status for the limited purpose of challenging the protective order and remitting the balance of the Globe's motion to the Superior Court for a new hearing - The court rejected the argument that the burden was on the Globe to establish that the protective order should be set aside - First, it was well-established that a party moving against an ex parte order did not bear the onus of proof - Second, constitutional law provided that a party attempting to justify an infringement of a Charter guarantee bore the onus - The motion judge correctly accepted that basic proposition - However, certain steps of his reasoning lost sight of it - He attached great weight to Black's right not to self-incriminate, but did not indicate any circumstances that made continuing the protective order necessary to ensure the fairness of Black's impending trial in the United States - He failed in that regard to apply the burden on the respondents to establish that continuing the order was necessary to prevent Black's U.S. trial from being unfair - It was for the respondents to place before the court sufficient information to enable it to understand how prosecutor access to the sealed material would render Black's trial unfair - Something more than a simple assertion was required - While there was a conceivable risk, the respondents had not established that the risk was real - See paragraphs 76 to 92 and 128.

Courts - Topic 4806

Common law - General - Hearings - Open court - [See Practice - Topic 684 ].

Practice - Topic 684

Parties - Adding or substituting parties - Intervenors - Where constitutional issue raised - The plaintiffs obtained a Mareva injunction against Black and Amiel-Black - The motion judge made a protective order sealing the motion material - Bell Globemedia Publishing Inc. (the Globe) moved to intervene to set aside the protective order - The motion judge dismissed the Globe's motion - The Ontario Court of Appeal allowed the Globe's appeal, granting the Globe intervenor status for the limited purpose of challenging the protective order and remitting the balance of the Globe's motion to the Superior Court for a new hearing - The motion judge erred in principle in refusing to grant the Globe intervenor status, failing to give sufficient weight to the Globe's constitutionally guaranteed freedom of the press and to the fact that the Globe sought standing to assert a position coincident with the public's interest that would not be raised otherwise - The public had an interest in whether the protective order was continued or set aside - Except for the Globe, there was no one, first, to raise the issue and, then, to advocate the position that the protective order unnecessarily violated the open court principle - The motion judge's error was not merely a matter of form, but one of substance - The motion judge's perception that the Globe lacked sufficient connection to challenge the protective order would have undermined the force of the Globe's position - See paragraphs 36 to 44, 120 and 129.

Practice - Topic 685.2

Parties - Adding or substituting parties - Intervenors - On a motion - [See Practice - Topic 684 ].

Practice - Topic 3132

Applications and motions - Motions - In camera hearings and publication bans - [See first Civil Rights - Topic 2486 , Civil Rights - Topic 8364 and Practice - Topic 684 ].

Practice - Topic 6246.1

Judgments and orders - Setting aside orders - Status or standing - [See first Civil Rights - Topic 2486 and Practice - Topic 684 ].

Practice - Topic 6252

Judgments and orders - Setting aside orders - Grounds for - [See first Civil Rights - Topic 2486 and Practice - Topic 684 ].

Practice - Topic 6254

Judgments and orders - Setting aside orders - Ex parte orders - [See Civil Rights - Topic 8364 ].

Cases Noticed:

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. 27].

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, refd to. [para. 27].

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. 35].

P.S. v. D.C. (1987), 22 C.P.C.(2d) 225 (Ont. H.C.), refd to. [para. 43].

National Bank of Canada v. Melnitzer (1991), 5 O.R.(3d) 234 (Gen. Div.), refd to. [para. 43].

Ivandaeva Total Image Salon Inc. et al. v. Hlembizky (2003), 169 O.A.C. 354; 63 O.R.(3d) 769 (C.A.), refd to. [para. 43].

Dodge (John E.) Holdings Ltd. v. 805062 Ontario Ltd. (2003), 168 O.A.C. 252; 63 O.R.(3d) 304 (C.A.), refd to. [para. 49].

Hendrickson v. Kallio, [1932] O.R. 675 (C.A.), refd to. [para. 51].

L.L.A. v. Beharriell, [1995] 4 S.C.R. 536; 190 N.R. 329; 88 O.A.C. 241, refd to. [para. 69].

R. v. Primeau (D.J.), [1995] 2 S.C.R. 60; 180 N.R. 101; 131 Sask.R. 198; 95 W.A.C. 198, refd to. [para. 70].

Howland v. Dominion Bank (1892), 15 P.R. 56 (Ont. C.A.), refd to. [para. 78].

R. v. Henry (D.B.) et al. (2005), 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1; 202 C.C.C.(3d) 449 (S.C.C.), refd to. [para. 81].

Hollinger Inc. et al. v. Ravelston Corp. et al. (2007), 84 O.R.(3d) 611 (C.A.), refd to. [para. 81].

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, refd to. [para. 95].

R. v. Toronto Star Newspaper Ltd. et al., [2005] 2 S.C.R. 188; 335 N.R. 201; 200 O.A.C. 348, refd to. [paras. 95, 123].

Stelco Inc. et al., Re, [2006] O.T.C. Uned. 93 (Sup. Ct.), agreed with [para. 105].

Authors and Works Noticed:

Crane, Brian A., and Brown, Henry S., Supreme Court of Canada Practice (2007), p. 77 [para. 68].

Holmested, George Smith, and Watson, Garry D., Ontario Civil Procedure (1984) (Looseleaf Ed.), rule 62§7 [para. 53].

Sharpe, Robert J., Injunctions and Specific Performance (3rd Ed. 2000), p. 2-2 , s. 2.25 [para. 78].

Sopinka, John, and Gelowitz, Mark A., The Conduct of an Appeal (2nd Ed. 2000), p. 20 [para. 53].

Counsel:

Peter Jacobsen and Adrienne Lee, for the appellant;

Davit D. Akman, for the respondents, Hollinger Inc. et al.;

David Roebuck, Edward L. Greenspan, Q.C., and Jasmine Akbarali, for the respondents, Conrad Black and Barbara Amiel-Black.

This appeal was heard on September 25, 2007, by Laskin, Juriansz and Rouleau, JJ.A., of the Ontario Court of Appeal. On March 28, 2008, the judgment of the court was released with the following opinions:

Juriansz, J.A., dissenting in part - see paragraphs 1 to 116;

Rouleau, J.A. (Laskin, J.A., concurring) - see paragraphs 117 to 130.