Judicial notice of risk of identity theft justifies a partial publication ban or redaction, but that’s it

21 Aug

On August 16th, the Nova Scotia Court of Appeal overturned an order that sealed the record in a matrimonial dispute and substituted an order that favored either a partial publication ban or redaction (at the parties’ option). The case is notable because the substituted confidentiality order was only based on judicial notice of the risk of identity theft that would flow from the misuse of certain kinds of personal information.

The matter is about access to the court file in a Nova Scotia proceeding. The parties resisted a media organization’s request for access, without adducing any evidence, based on an asserted concern about identity theft. The motion judge recognized the risk, held that a partial publication ban could not be policed and held that a redaction order would be cumbersome and costly. She ordered the court file to be sealed in whole.

In overturning the sealing order, the Court of Appeal stressed that a confidentiality order must be established by evidence or by facts that are properly subject to judicial notice. In this regard, it accepted that identity theft is a risk that can be recognized on judicial notice. The Court said:

I accept that judicial notice may be taken of the social fact that “identity theft is real”, in the judge’s words.

I also accept that access to (1) unique personal identifier numbers, namely passport or Social Insurance Numbers, Health Insurance Card or driver’s licence numbers, (2) credit or debit card numbers, (3) unique property identifier numbers, namely numbers for bank accounts or other investment assets or for debt instruments or insurance policies, and serial or registration numbers for vehicles, may assist the use of identity theft to fraudulently access property.

I also accept that (4) dates of birth, (5) names of parents, (6) personal addresses, (7) email addresses and (8) telephone numbers sometimes may not already be in the public domain, and therefore access to that information in a court file possibly could assist with identity theft. I add that this record has no evidence one way or the other whether that information, for Mr. Jacques or Ms. Foster-Jacques, already is in the public domain.

The Court said the motion judge was wrong, however, to find that a partial publication ban could not be policed and that a redaction order would be cumbersome and costly. It held that there was no evidence to support these findings, which rested on judicial notice of dispositive adjudicative facts.

The Court substituted an order that let the parties opt to redact the information set out in the paragraphs quoted above, failing which, the media would be subject to a prohibition on publishing the same information. While stressing the importance of a firm evidentiary foundation for confidentiality orders, this judgment also suggests that a limited confidentiality order to protect against the disclosure or publication of personal information that is commonly used to establish one’s identity should not be difficult to obtain.

Coltsfoot Publishing Ltd v Foster-Jacques, 2012 NSCA 83 (CanLII).

[Hat tip to Peg Duncan of IT and eDiscovery.]

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