PraCtiCe
Confidentiality Orders
Motion for confidentiality order pursuant to Federal Courts Rules, SOR/98-106 (Rules), rr. 151, 152 — Applicant submitting workplace violence complaint against several individuals employed by Department of Natural Resources Canada under Canada Occupational Health and Safety Regulations, SOR/86-304 (Regulations), Part XX — Department appointing independent investigator to look into complaint — Applicant submitting complaint that investigator not impartial, had failed to follow principles of procedural fairness — Complaint dismissed — As part of application for judicial review, applicant seeking disclosure of documents containing identities of participants in investigation of complaint — Respondent arguing not in public interest for identifying information about individuals involved in workplace violence complaint to be made public without consent of those individuals — Main issue raised in motion whether Court should issue confidentiality order — Court hearing confidentiality motion having to apply test set out by Supreme Court in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522 (Sierra Club), elaborated in Sherman Estate v. Donovan, 2021 SCC 25 — In Desjardins v. Canada (Attorney General), 2020 FCA 123 (Desjardins), Federal Court of Appeal (F.C.A.) considered these principles in response to confidentiality motion brought in case involving alleged wrongdoing disclosed under Public Servants Disclosure Protection Act, S.C. 2005, c. 46 — F.C.A. allowed appeal on basis that evidence of risks associated with disclosure too general, did not meet standard of “well grounded” or convincing evidence — One of issues in this case whether clarification of test in Sherman having any bearing on principles established in Desjardins — In applying guidelines set out in Sherman, person asking court to exercise discretion in way that limits open court presumption must establish that court openness poses serious risk to important public interest; order sought necessary to prevent this serious risk to identified interest; and benefits of order outweigh its negative effects — Prevention of violence in workplace being type of important public interest that may warrant protection of confidentiality order in appropriate circumstances — Question being whether evidence meeting test of demonstrating that open court principle poses serious risk to public interest — Fact that disclosure of personal information may cause inconvenience not sufficient to rebut open court presumption — In present case, several considerations supporting order sought identified — Intention to maintain anonymity of participants in workplace violence investigation reflected in provisions of Regulations — Clear from provisions of Regulations that employer cannot disclose names, other identifying information of survey participants without their consent — Desjardins rejects approach restricting exercise of discretion under rule 151 in systematic way— Evidence demonstrating that disclosure of identities of those involved in investigation of applicant’s complaint would pose serious risk of harm to important public interest — Accordingly, confidentiality order sought by respondent granted — Limited confidentiality order sought necessary to avert risk, other reasonable measures to avoid apprehended harm not available — Benefits of limited confidentiality order in present case outweighing potential impact on open court principle — Motion granted.
Pothier v. Canada (Attorney General) (T-325-20, 2021 FC 979, Pentney J., reasons for order dated September 22, 2021, 25 pp.)