Monday, 16 April 2012

Evidence of Potential Harm Required to Seal Exhibits

Following up on my previous post about redactions, here is another decision, this time out of the Ontario Court of Appeal, dealing with confidentiality of business information filed in court.

This week, the The Lawyers Weekly reported that the Ontario Court of Appeal, in Out-Of-Home Marketing Association of Canada v. Toronto (City), 2012 ONCA 212, upheld Toronto's sign levy and agreed that that it was not an indirect, and therefore unconstitutional, tax.  Personally, I am more interested in another aspect of this decision where the court overturned the sealing order for the financial information filed by the Petitioner in support of its constitutional challenge, finding that the Petitioner did not establish a public interest in protecting the information.

The Petitioner filed documents "pertaining to its outdoor sign inventory that [it] identified as being proprietary, confidential and commercially sensitive".  However, in the course of the application, the documents were marked as exhibits and some of the Petitioner's witnesses relied on information in these documents. The chambers judge imposed the sealing order sought by the Petitioner concluding that the Petitioner:
... had “an important interest in the preservation of its proprietary and confidential information” and that because the evidence in issue was not “determinative of the constitutional question”, keeping it confidential would not adversely affect the public’s ability to comprehend the proceedings and their outcome.
The Court of Appeal disagreed, finding that the judge did not properly apply the principles set out by the SCC in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41 at para. 26; Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41 at paras. 45-46; and R. v. Mentuck, 2001 SCC 76 at para. 32.

The court explained that a sealing order is only justifiable when it is “necessary in order to prevent a serious risk to the proper administration of justice” and "the interest jeopardized must have a public component".  The court further explained that, to establish public interest, the "evidence relied upon to satisfy the first branch of the test must be “convincing” and “subject to close scrutiny and meet rigorous standards ... keeping with the well-recognized serious implications of the order".  In this respect, the court found that the Petitioner did not meet its burden:
[57]       Pattison framed its need for the sealing order on the basis that disclosure would imperil its commercial interests.  The only evidence in support of this assertion is a statement in the affidavit of Randy Otto that the information under seal is “highly sensitive and confidential and can be used by Pattison Outdoor’s competitors, advertisers and land owners to Pattison Outdoor’s disadvantage.”

[58]       In my view, this evidence falls short of allowing Pattison to get past the first branch of the Mentuck test.  There is no indication of how the information could be used against Pattison’s business or how great a risk disclosure would present.