Tag Archives: sealing orders

Court sends matter back to arbitrator to consider redaction request

22 Sep

On September 13th, the Federal Court of Appeal held that the Public Service Labour Relations and Employment Board was not functus officio and ought to have entertained an employer’s request to redact witness names.

The employer claimed it made an unopposed request to obscure the identities of several non-union witnesses during the Board’s hearing. When the Board issued a decision that included full names, the employer wrote the Board and asked for a correction. The Board disagreed that the employer had made a request during the hearing and held it was functus officio. The employer brought an application for judicial review, compounding the problem by filing an un-redacted copy of the decision on the Court’s public record.

The Court accepted affidavit evidence from the employer and held that it had, in fact, made an unopposed request during the hearing. Alternatively, the Court held that the Board had the power to amend its decision based on section 43 of the Public Service Labour Relations Act. The Court also ordered that its record be treated as confidential and that the applicant file new materials with witness names replaced by initials, stating, “So doing provides little, if any, derogation to the open courts principle as [the witnesses’s] identities are not germane to the decisions.”

This is an unfortunate example of (a) rising sensitivities regarding the inclusion of personal information in judicial and administrative decisions and (b) the need to be careful about it. This affair (which shall continue) could have been avoided if the parties had asked the Board to make a formal order during course of the hearing. The employer also ought to have brought a motion for a sealing order at the outset of its judicial review application, before filing un-redacted materials (a point that the Court made in its decision).

Hat tip to Ian Mackenzie.

Canada (Attorney General) v Philps, 2017 FCA 178 (CanLII).

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Party defending against claim based on prior settlement does not waive settlement privilege

30 Oct

On September 30th, the Divisional Court held that a party defending against claim based on prior settlement does not waive settlement privilege. The Court reasoned as follows:

Consistent with such notions of fairness, we are satisfied that the LCBO has not waived settlement privilege in this case. The LCBO claims that Magnotta’s current actions advance the same claims as the prior settled proceedings, and we express no view on that assertion. However, the LCBO should, as a matter of fairness, be able to raise the settlement in its defence and in support of its proposed motion, without automatically losing the benefit of settlement privilege. In particular, the LCBO should be able to rely on the Minutes of Settlement for this purpose.

The defendant obtained a sealing order based on the public interest in encouraging parties to settle their disputes.

Magnotta Winery Corp v Ontario (Alcohol and Gaming Commission), 2015 ONSC 6234 (CanLII).