Federal Court Decisions

 

 

 

Date:  20081003

                                                                                                                                                           

Citation:  2008FC1115

 

 

Ottawa, Ontario, Friday, this 3^rd day of October 2008

 

 

PRESENT:     MADAM PROTHONOTARY MIREILLE TABIB

 

 

Docket:  T-1256-08

 

BETWEEN:

 

MONSIEUR A ET MADAME B

 

                                                                                                                                           Applicants

                                                                         - and -

 

 

ATTORNEY GENERAL OF CANADA

 

Respondent

 

 

 

 

Docket:  T-1257-08

 

BETWEEN:

 

MR. X

 

Applicant

- and -

 

 

ATTORNEY GENERAL OF CANADA

 

Respondent

REASONS FOR ORDER AND ORDER

 

[1]               I am seized of a motion by the Applicants for an order that they be authorized to file and prosecute these applications anonymously and for an order that certain documents and information filed in their applications be treated confidentially.

 

The facts and circumstances:

[2]               Materials filed publicly in this matter reveal the following:  Mr. X is a former civil servant within the federal public service.  Mr. X was the subject of an investigation by the Public Service Commission of Canada (“PSC”) stemming from allegations of wrongdoing on his part during a staffing process in the federal public service.  The PSC intends to include in its annual report (which is destined to be posted publicly on its website) personal information about Mr. X collected during that investigation.  In the materials submitted publicly on this motion by Mr. X, he admits that the information at issue is damaging to himself, will harm his reputation and cause shame and embarrassment to himself and, because of their association with him, to his family.  Mr. X further alleges that disclosure of the information will impede his efforts to find employment.

 

[3]               Monsieur A and Madame B are persons who claim that personal information concerning them is included in the materials the PSC intends to publish. The publicly filed material does not indicate the nature or type of the information concerning Monsieur A and Madame B which is intended to be published, or whether or why the information would be damaging or prejudicial to them, beyond the fact that it would breach their right to privacy.

The remedies sought:

[4]               In their judicial review applications, all three Applicants seek a review of the PSC’s decision to publish “their personal information”. In the case of Mr. X, the Notice of Application does not specify the extent of what is considered to be his “personal information”. In the case of Monsieur A and Madame B, the Notice of Application is at once as vague and much more precise: It seeks an order that “all personal information concerning the applicants and their family” be redacted, and an order permitting disclosure only of information that will not identify the Applicants and their family.

 

[5]               In the motions for a confidentiality order with which I am now seized, Mr. X and Monsieur A and Madame B very explicitly seek as relief that they be allowed to proceed with these applications anonymously, and that their names and addresses be treated confidentially to prevent their being identified.

 

[6]               More vaguely, both motions also seek orders that “any other personal information” about them or “the personal information at issue in this application” be kept confidential.  Again, what, other than their names and addresses, is that other personal information is not stated. 

 

[7]               For both motions, the Applicants submitted confidential affidavits, which they ask be ordered to remain confidential. One would expect that these affidavits would identify with specificity the information they consider confidential, and that they would not be filed confidentially if all they contain is information already disclosed on the public record. Both the Applicants’ counsels appear well aware of the public interest in open and accessible Court proceedings, and of the imperative that confidentiality orders, when issued, should be framed as narrowly as possible to promote as much as possible the principle of open and accessible Court proceedings while preserving the confidentiality interests at stake. Both counsels would also have been expected to be aware that where documents contain mostly public information and only some, reasonably severable confidential information, it is a good and well known practice to submit two versions of the document, one public version from which the confidential information is redacted, and one complete, unredacted version to be kept confidential. The Applicants however did not take these steps.[1]

 

[8]               As mentioned above, providing redacted copies of the material would have greatly assisted the Court in identifying what the Applicants mean by “other personal information” to be kept confidential, especially in the context where Mr. X has put on the public record almost all of the information concerning himself that PSC intends to publish, in addition to publicly volunteering even more personal information, such as the academic degree he possesses, his state of health, marital status, and the recent birth of his first child.

 

[9]               In an effort to understand what the Applicants meant to cover by the proposed confidentiality order, the Court invited counsel for the Applicants at the hearing to indicate exactly which parts of the summary intended to be published by the PSC[2] is in fact personal information of the Applicants, is not already disclosed on the public record, and should be kept confidential.

 

[10]           The thrust of Mr. X’s counsel’s argument was that it includes any information that would lead to the identification of Mr. X. Unfortunately, counsel could not say which parts or elements of the summary would lead to identification of his client.

 

[11]           On behalf of Monsieur A and Madame B, counsel only pointed to one half of one sentence, which refers to the participation of an un-named individual, identified only in terms of the relation in which he or she stands to Mr. X, (such as, for example, a co-worker, a neighbour, a family member). One understands that either Monsieur A, Madame B or a member of their family stands in the same relation to Mr. X as that un-named individual, such that the un-named individual is either one of them, or could be mistaken for them. For Monsieur A and Madame B, therefore, the information to be protected (beyond their name and address) would appear to be limited to the relation in which they stand to Mr. X.  However, I note that one of the grounds on which they appear to object to the publication is that identification of Mr. X himself will cause embarrassment or prejudice to them by association[3]. As Mr. X, they therefore seek to protect any information that would serve to identify Mr. X, but cannot identify what part of the summary would lead to that result.

            I therefore take that the relief sought by the Applicants is as follows:

 

·        Primarily, that each of their their names and addresses be kept confidential.

·        That “information that would lead to the identification of Mr. X” be kept confidential;

·        Additionally, For Monsieur A and Madame B, that the relation in which they stand to Mr. X be kept confidential.

 

            I will consider each prayer for relief in turn.

 

Names and addresses of Mr. X, Monsieur A and Madame B:

[12]           Notably, the Respondent agrees that that remedy is appropriate in the circumstances.

 

[13]           The parties in this matter are in agreement that confidentiality orders such as the one sought in this matter should not lightly be granted, as they impinge upon the quasi-constitutional principle of open and accessible Court proceedings[4]. They also agree that the applicable test is the following:

 

[14]           “A confidentiality order under Rule 151 should only be granted when:

(a)     such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and

 

(b)     the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.”[5]

 

[15]           Both sets of Applicants, in their motion materials, essentially state that their alleged right to object to the disclosure of their identity (which all agree includes their names and addresses) is the central issue in these judicial review proceedings, and that disclosure of that very information as part of their public filings would accomplish exactly what they are attempting to prevent, and effectively render their judicial review applications moot. I agree. I further agree that preventing this harm – the effective denial of the Applicants’ access to judicial review by reason of their application becoming moot by the simple fact of filing the application – is sufficiently important to justify a confidentiality order.

 

[16]           It is common in litigation under the Access to Information Act and the Privacy Act for confidentiality orders to be issued to prevent the disclosure of the very information which is sought to be protected, pending determination of the application. Of course, it is unusual that the information sought to be protected is the very name of the applicant, with the result that the proceedings would almost necessarily have to be brought under a pseudonym. Indeed, people’s names, in isolation, do not generally incite privacy concerns; it is when these names are associated with or related to other information or circumstances that privacy issues arise. Even in the matters at issue, it is clear that the Applicants’ desire to prevent disclosure of their names does not attach to their names in isolation, but to the association of the names with the facts and circumstances set out in the PSC summary.

 

[17]           The association of names with certain circumstances can be protected in one of two ways: the true names of the applicants can be used publicly, and the specific circumstances with which their identities would be associated protected, or the circumstances can be laid out publicly, with the identities of the applicants protected. The decision as to most appropriate way to proceed in any given instance rests with the Court, and should take into consideration which device is most apt to serve the public’s interest in open and accessible Court proceedings without compromising the rights asserted by the parties.

 

[18]           Taking into account all circumstances herein, I have come to the conclusion that the balancing of the parties’ legitimate confidentiality interests and the public’s right of access to judicial proceedings can be best accommodated by protecting the Applicants’ names and addresses, provided that that the circumstances giving rise to the application and the decision of the PSC to publish the summary, including the summary itself (with names redacted), are otherwise publicly filed. As argued by counsel for Mr. X himself, this manner of proceeding would protect the disclosure of the very information sought to be protected, and thus avoid that any relief to which the Applicants may be entitled becomes nugatory before it can even be ordered. It will also ensure that the issues which are at stake in this application can be understood from the public record, and that they can be transparently debated and determined, in an open and accessible manner.

 

[19]           I have come to that conclusion, and would have come to it, independently of the unfortunate way in which the Applicants chose to file their materials herein. The Applicants chose to file their Notices of Application anonymously, accompanied by motions seeking confidentiality protection for their identities. In the context of his motion, Mr. X chose to file publicly most, if not all of the relevant circumstances disclosed in the PSC summary. Not only was that course of action  not in accordance with the Federal Court Rules, but it all but eliminated the first option discussed above as a viable means of protecting the crucial association between the Applicants’ identities and the circumstances. The fact that the judicial review application was filed anonymously may also have played a role in the media attention this matter has generated.

 

[20]           The Rules of the Court require every originating document, including a notice of application, “to set out the names of all parties”[6]. Relief from compliance with this Rule may only be obtained by order of the Court, made on motion. Thus, the appropriate way in which the

Applicants should have proceeded would have been to bring a motion prior to the commencement of the applications, as specifically contemplated in Rules 67(6) and 24, for leave to file their applications under a pseudonym or for such confidentiality order as may be necessary to protect the relevant information. Once the Court has determined the appropriate level and method of protection, the proposed notice of application can be tailored to meet the conditions of the order and then filed. As importantly, if unsuccessful in obtaining the degree of protection they desire, parties may then make enlightened choices as to whether and how to proceed with subsequent steps.

 

[21]           I should also note, before moving to the next issue, that on the records before me, I would not have granted protection to Mr. X’s name and address on the basis of the other grounds cited in his motion materials, namely, public embarrassment and shame, and impediment to securing employment. As pointed out in Doe v. Canada (Attorney General), 2003 FCT 117:

 

“Stress and, to a degree, embarrassment and their impact on a litigant's life and employment, can be common in much litigation. Against this must be balanced the rights of the other side and of the Court to appropriate procedure, including full disclosure.”

 

[22]           This Court has been slow to recognize humiliation, embarrassment or loss of reputation as justifying confidentiality orders unless clear evidence of serious harm is presented. In Doe v. Canada (Attorney General)(supra) and more recently in Doe c. Ministre de la Justice 2008 FC 916, general affirmations of humiliation, loss of reputation or impediment to employment were found not to justify the use of a pseudonym. In the present matter, the prejudice is presented as arising specifically as a result of the very public posting of the information through the PSC’s website. While Court filings are open and accessible to the public, they do not have the same widespread public dissemination as internet postings. Reasons for order are the only portion of Court filings that are openly and widely published, and every Judge or Prothonotary has the discretion to be as circumspect as he or she believes is necessary in drafting orders and reasons for orders[7]. The evidence before me is simply not sufficient to conclude that merely placing on the Court’s public record information identifying Mr. X would cause the prejudice feared by Mr. X.

 

Other Information leading to the identification of Mr. X.

[23]           As mentioned above, neither counsel for Mr. X nor counsel for Monsieur A and Madame B could identify, in the summary proposed to be posted by PSC on its website, what information, other than the name and address of Mr. X, was not otherwise disclosed on the public record and would lead to the identification of Mr. X. There is, moreover, no evidence to support a finding that laying that information on the open record would lead to identification. Counsel for Mr. X mentioned at the hearing that such evidence could be brought, but would require the filing of expert evidence on reverse identification. I am not prepared to permit the Applicants to supplement their record in that regard so as to delay the determination of this motion pending receipt of additional evidence. A party seeking a confidentiality order has the onus of presenting to the Court such evidence as it feels is necessary to support the remedy requested. Furthermore, as counsel did not even know whether any information, other than the name of Mr. X, would in fact lead to his identification, the availability of evidence to support this fact is clearly speculative.

 

[24]           Even assuming that an expert in reverse identification could piece together additional personal information drawn from the materials submitted confidentially with the evidence already on the public record, there is no evidence that a person would be motivated to go to such lengths to  identify the Applicant. I am not convinced that such an outside risk would outweigh the further infringement on the open Court principle which would result from the removal from the public record of further details of the circumstances relevant to this judicial review. As previously mentioned, preserving the confidentiality of the Applicants’ names and addresses constitutes an acceptable limit to the principle of accessible and open proceedings, provided that all other circumstances giving rise to this application are otherwise publicly filed so as to allow an intelligible and transparent debate and determination of the issues. On the record before me, it appears that even information such as the department for which Mr. X worked, and the level of seniority and responsibility he occupied, may be relevant to determination of the issues in this application. The ability of the parties to make complete representations on the public record in relation to these issues, and of the Court to publicly consider them, should not be curtailed in the absence of clear evidence of a real risk of substantial harm.

 

[25]           As a result, I would only include in the confidentiality order the exact designation of the position or positions held by Mr. X. Information relating to the department in which he worked, or referring to the classification level of his position or the general responsibilities and requirements of that position will not be confidential. Information as to the specific acts reproached to Mr. X will also not be confidential.

 

The relation in which Monsieur A and Madame B stand to Mr. X

[26]           It is important to understand here that the content of the information which the PSC seeks to post on its web site in relation to the investigation and its findings has evolved significantly over time. It appears from the record before me that the PSC’s intention was initially to post the complete investigation report. That report was not tendered in evidence, but from the initial letter of objection sent to the PSC by counsel for Monsieur A and Madame B, it appears that the report included the name and the exact description of the relationship between one of these two Applicants and Mr. X, additional personal information about that Applicant, and the suggestion that he or she was a participant in Mr. X’s wrongdoing. With respect to the other Applicant, it is clear that the report of investigation never made any mention of his or her personal information.

 

[27]           The PSC eventually resiled from its intention to publish the report, and instead, indicated it would publish a summary of the report. The first proposed summary removed the name and other personal information of the Applicant previously named, but kept the exact description of the relationship between that Applicant and Mr. X, with the mention of participation in the wrongdoing. Further discussions took place leading to other changes.

 

[28]           The final iteration of the summary intended to be published only refers to the relation in which the participant stands in relation to Mr. X in generic, non-specific terms. That generic relationship applies equally to both Monsieur A and Madame B, such that the relationship no longer suffices to specifically identify any one of the two Applicants.

 

[29]           Logically, the mere disclosure of the relation in which unnamed people stand to an un-named person cannot lead to the identification of any one of them. Nothing in the record before me would indicate that this assumption does not apply in the circumstances. Accordingly, so long as the name and address of Mr. X, Monsieur A and Madame B remain undisclosed, the disclosure of the generic relation in which Monsieur A and Madame B stand to Mr. X cannot prejudice them, or render their application moot.

 

[30]           Furthermore, experience has already demonstrated that it is virtually impossible for counsel to make effective representations on behalf of his clients in open Court or on the open record without referring to the generic relation between his clients and Mr. X. At the hearing of the present motion, with members of the public present in Court, the Court attempted to discuss with counsel for Monsieur A and Madame B the kind of personal information they allege is disclosed in the proposed summary, or why this information is personal information of his clients which should be protected. Counsel for the Applicants having obviously determined that he would not mention the nature of the relationship between his clients and Mr. X, he found himself painfully hamstrung in making representations, to the point where an effective, open and transparent discussion could not be held.

 

[31]           To allow the Applicants to redact from the materials to be filed in this application any mention of the relation in which they stand to Mr. X would prevent the very basis and grounds for their application from being publicly understood, and therefore effectively cloak the entire argument in relation to their application in a veil of secrecy.

 

[32]           I am satisfied that protecting the names and addresses of Mr. X, Monsieur A and Madame B, is amply sufficient to prevent harm to the interests of Monsieur A and Madame B, pending determination of this application, and that extending that protection to the relation in which they stand to Mr. X would put unnecessary and excessive limits on the public interest in open and accessible Court proceedings. I also note that there has already been some amount of “bleeding” of information between the two files, and that if the nature of the relationship between the Applicants is not already publicly available, it might yet be inferred.

 

[33]           I note here that the initial exchange of letters between counsel for Monsieur A and Madame B and the PSC, filed as an exhibit to the affidavits of Monsieur A and Madame B, contains information not only as to the generic relation in which they stand to Mr. X, but as to the specific relation in which each stands to him, as well as some additional personal information such as studies and medical information. It appears that that information was initially given to PSC by Counsel for Monsieur A and Madame B as germane to the arguments presented to oppose the disclosure of the entire investigation report and of the name of Mr. X. Because the PSC has since significantly changed the content of the information to be published, it may be those references are no longer relevant, and that simply identifying the generic relation in which the Applicants stand to Mr. X will be all that is needed to support the Applicants’ arguments. Expecting that to be the case, the Court is prepared to order that references to the specific relationship between the parties and other personal information they volunteered be redacted from the affidavits and exhibits already filed in the public record, and from exhibits to be filed and the certified record of the PSC. To the extent the specific relationship between the Applicants and Mr. X forms any part of the Applicants’ argument, then the argument and related evidence will obviously have to be filed in the public record, to allow public intelligibility of their argument.

Treatment of the materials already submitted by the Applicants under seal, and of future filings

 

[34]           The Applicants are to prepare a public version of the affidavits and exhibits they have tendered under confidential seal, from which they may redact the following specific information:

 

·        The names, addresses and cities of residence of the Applicants.

·        The institutions at which and programmes for which Monsieur A and/or Madame B study, and reference to medical information;

·        The exact position held by Mr. X.

·        The specific relation in which Monsieur A and Madame B stand to Mr. X, although any mention of  the generic nature of that relationship (such as neighbours, co-workers, family members, etc) is to remain;

 

[35]           The proposed public version is to be provided to the Respondent for its comments and approval, prior to being submitted to the Court for filing. The same shall be done in relation to the certified record of the PSC and any further affidavits or exhibits filed herein.

 

[36]           The parties shall refrain, in any written representations to be filed in this matter, from mentioning the information specified above. If any of the parties feel that mention of the said information in written submissions is necessary, that party shall, prior to filing the written representations in question, either move for this confidentiality Order to be varied or for leave to file a redacted version of the written representations.

Continued confidentiality pending appeal

[37]           Realizing that this Order may be subject to appeal to a Judge, and in order to avoid any such appeal becoming moot, I have avoided mentioning in this Order the nature of the relation in which Monsieur A and Madame B stand to Mr. X, or other information the Applicants might have wished be covered by a confidentiality order. For the same reason, for the purposes of the deadlines set out in the Order dated September 9, 2008 for filing affidavits and communicating to the Court the PSC’s certified record, the effect of this Order will be suspended until the determination of any appeal of this Order to a Judge of this Court, or the expiration of the time provided in the Rules for filing such an appeal, if no appeal is filed. The materials filed confidentially by the Applicants in support of this motion will also continue to be treated confidentially during that period of time.

 

[38]           In ordering that suspension, I take into account that the hearing of an appeal of this Order pursuant to Rule 51 of the Federal Courts Rules should not require more than 2 hours and can therefore be heard at the earliest convenient General Sittings, well before the parties would be required to file their respective records in accordance with the scheduling order issued on September 9, 2008. The short suspension I therefore envisage would not delay the orderly progress of this application or its timely determination. If the present order is appealed and maintained on appeal, it will be up to the Judge to determine whether his or her order should be stayed or suspended pending a possible appeal to the Court of Appeal.

ORDER

 

            IT IS ORDERED THAT:

1.                  The Applicants shall, no later than 10 days from the date of this order, serve and file, under confidential seal, amended notices of application in which the style of cause shall state their full names.

 

2.                  Notwithstanding the confidential filing of an amended notice of application pursuant to paragraph 1, all future filings in this matter shall continue to use the designations Mr. X, Monsieur A and Madame B in the style of cause.

 

3.                  The following information, hereinafter designated as the “Confidential Information”, shall be treated confidentially for the purposes of these proceedings:

 

(a)                The names, addresses and city of residence of the Applicants.

(b)               The exact position held in the Canadian public service by the Applicant designated as Mr. X.

(c)                The institutions at which and programmes for which either or both of the Applicants designated as Monsieur A and Madame B study, and medical information concerning either or both of them.

(d)               The specific relation in which the Applicants designated as Monsieur A and Madame B stand to the Applicant designated as Mr. X.

4.                  Subject to compliance with paragraphs 5 to 7 of this order, the affidavits and exhibits already filed by the Applicants under confidential seal shall remain confidential.

 

5.                  The Applicants shall, within 5 days from the date of this order, prepare a version of the affidavits and exhibits each of them has filed and a version of the certified record they have received from the Respondent, from which Confidential Information is to be redacted, and serve same on the other parties for their approval or comments.

 

6.                  The receiving parties shall, within 5 days of service of the proposed versions, either approve the redacted versions as corresponding to the terms of this order, or provide the other parties with their comments.

 

7.                  Redacted versions of the affidavits and exhibits, and of the certified record, as approved by all parties, shall be filed within the times specified in the scheduling order of September 9, 2008.  If no agreement is reached, each party’s proposed versions of the redacted documents shall, within the same delays, be submitted confidentially to the Court, along with their submissions, for determination by the Court as to which version is to be placed on the public Court record.

 

8.                  Whenever any party intends to submit for filing on the Court record affidavits or documentary exhibits containing Confidential Information, they shall submit same under seal, accompanied by a copy from which the Confidential Information will have been redacted, for placing on the public record.

9.                  All parties shall refrain from mentioning Confidential Information in any written representations or memoranda of fact and law to be filed in this application.  If any party considers it necessary that Confidential Information be mentioned in written representations, that party shall, prior to filing the document at issue, make a motion for leave to file the written submissions or memorandum confidentially, or to vary this order to remove the information in question from the definition of “Confidential Information”.

 

10.              For the purposes of the schedule set out in paragraphs 8 (a), (b) and (g) of the order of September 9, 2008, this order shall only become effective on the date of the determination of any motion to appeal this order, brought in accordance with Rule 51 of the Federal Courts Rules, or, if no appeal is brought, at the expiration of the time provided in the Federal Courts Rules to file such a motion.

 

 

 

“Mireille Tabib”

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          T-1256-08

 

STYLE OF CAUSE:                          MONSIEUR A ET MADAME B v. ATTORNEY GENERAL OF CANADA

 

DOCKET:                                          T-1257-08

 

STYLE OF CAUSE:                          MR. X v. ATTORNEY GENERAL OF CANADA

 

PLACE OF HEARING:                    OTTAWA

 

DATE OF HEARING:                      SEPTEMBER 4, 2008

 

REASONS FOR ORDER

AND ORDER:                                   TABIB P.

 

DATED:                                             OCTOBER 3, 2008

 

 

APPEARANCES:

 

Marc-Aurèle Racicot     Kris Klein	FOR THE APPLICANTS Monsieur A et Madame B   FOR THE APPLICANT Mr. X
Alain Préfontaire Claudine Patry	FOR THE RESPONDENT

SOLICITORS OF RECORD:

 

MARC-AURÈLE RACICOT     THE LAW OFFICE OF KRIS KLEIN	FOR THE APPLICANTS Monsieur A et Madame B   FOR THE APPLICANT Mr. X
JOHN H. SIMS, Q.C. DEPUTY ATTORNEY GENERAL OF CANADA	FOR THE RESPONDENT