Publication ban, sealing order on application for investigation not necessary: Saskatchewan court

The open court principle creates a “strong presumption that the public can attend hearings and that court files can be consulted and reported upon by the free press,” the Saskatchewan Court of Appeal has said in upholding the lift of a sealing order and publication ban on an application for an order for an investigation into a non-profit corporation.

In Windels v. Canadian Broadcasting Corporation, 2022 SKCA 72, the individual respondents filed a without-notice application under s. 214(1) of Saskatchewan’s Non-profit Corporations Act on July 16, 2021. The application asked for an order for the investigation of The Lighthouse Supported Living Inc. and an affiliated corporation, based on the appellant’s alleged misconduct as Lighthouse’s executive director and board member.

On July 19, 2021, Justice Heather MacMillan-Brown ordered that the application should proceed with notice. In November, a chambers judge of the Court of Queen’s Bench lifted the sealing order and publication ban in the s. 214 application, which prompted an appeal.

Appeal of publication decision dismissed

While the chambers judge made some errors, he appropriately concluded that there were no exceptional circumstances that would justify a continuing restriction on access to the court file or on publication of information regarding the s. 214 proceeding, the appellate court said.

The Supreme Court of Canada decision Sherman Estate v. Donovan, 2021 SCC 25, provided the applicable test for determining whether continuation of the sealing order and publication ban was proper. The test’s first requirement – a serious risk to an important public interest – was absent, the appellate court held. Here, there was no privacy interest amounting to an important and competing public interest that could constitute an exception to the open court principle.

The appellant alleged that there would be irreparable harm to Lighthouse but failed to offer direct evidence that the lifting of the sealing order and publication ban would cause the company’s clients physical or emotional harm, the appellate court noted.

The appellant then argued that the open court principle was inapplicable to s. 214 proceedings, given their unique characteristics. The appellate court accepted that the provision created a limited exception and allowed applications without notice to be heard privately. However, while the individual respondents originally brought the s. 214 application without notice, Justice MacMillan-Brown’s order on July 19 changed that aspect of the action.

Relating to the Sherman test’s second element, an order limiting openness would not be necessary to protect any important public interest that might exist, the appellate court determined.

Since the chambers judge ordered that notice of these proceedings should be provided to numerous interested parties within and beyond Lighthouse, continuing restrictions on access would lack efficacy and could exacerbate the possible damage, the appellate court said. With an open process, interested players could better understand the facts and could refrain from assuming that matters were worse than they were, the court added.

Finally, the appellate court did not have to tackle the Sherman test’s third requirement – that the order’s benefits would outweigh its negative effects. However, the court noted that the circulation of significant information, in line with the chambers judge’s order, weighed in favour of open access.