Appeal Judgments: 1 Allowed
Courts/Media: Publication Bans
Canadian Broadcasting Corp. v. Manitoba, 2019 MBCA 122, 2021 SCC 33 (38992)
"An affidavit filed in a criminal matter before the Court of Appeal had been subject to a publication ban pending a decision as to its admissibility as new evidence. In its November 2018 reasons allowing the appeal on the merits, the Court of Appeal dismissed the motion for new evidence but ordered that the publication ban remain in effect indefinitely. In May 2019, the CBC brought a motion before the Court of Appeal to have the publication ban set aside, arguing that having access to the affidavit would shed light on the criminal matter before the Court of Appeal and the court’s conclusion on the merits that a miscarriage of justice had occurred at trial.
The Court of Appeal declined to consider the CBC’s motion, citing its rule of practice against rehearings and the doctrine of functus officio. The court reasoned that its jurisdiction was exhausted once it had decided the merits of the case and entered its formal judgment disposing of the appeal. It concluded that it had no authority to hear the motion. The CBC applied for and was granted leave to appeal to the Court from both the Court of Appeal’s 2019 decision refusing to reconsider the publication ban (“2019 Jurisdiction Judgment”) and the Court of Appeal’s 2018 decision ordering the indefinite publication ban (“2018 Publication Ban Judgment”)."
The SCC (8:1) allowed the appeal from the 2019 Jurisdiction Judgment, and the matter is remanded to the Court of Appeal; the appeal from the 2018 Publication Ban Judgment is adjourned sine die.
Justice Kasirer wrote as follows (at paras. 6-9, 47-50, 73, 84, 102-104):
"As to the first appeal, and so said with great respect, I do not share the Court of Appeal’s view that it was without jurisdiction to consider the motion brought by the CBC. It is true that, in the exercise of its appellate authority, the Court of Appeal could not rehear the appeal on the merits and that the doctrine of functus officio precludes it from reconsidering the substance of the appeal. But after a court loses jurisdiction over the merits, it generally retains the authority to supervise access to the record of its own proceedings. Even after the formal judgment on the merits is filed, this ongoing authority allows the court to ensure compliance with the constitutionally‑protected open court principle and the protection of other important public interests against which it must be weighed. Indeed, it is critical to upholding the responsibility all courts have to manage their records in accordance with the Canadian Charter of Rights and Freedoms and the proper administration of justice. As ancillary court openness issues have no bearing on the judgments on the merits, there was no reason for the Court of Appeal to tie its own hands in service of the finality of the underlying judgment that was not at risk.
Moreover, the Court of Appeal had ordered the continuing publication ban in its judgment on the merits without a hearing to determine whether the open court principle should be limited in the circumstances. The Court of Appeal ought to have considered whether it was appropriate to set aside its publication ban on motion by the CBC in these circumstances.
For the reasons that follow, to dispose of the first appeal I propose that the matter should be remanded to the Court of Appeal to decide the CBC’s motion. That court is best placed to decide the discretionary and fact‑specific issues raised, including whether the CBC should be granted standing to challenge the publication ban, whether the motion was unreasonably delayed such that it is not in the interests of justice to hear it and whether the lifting of the publication ban is justified here taking into account this Court’s decision in Sherman Estate v. Donovan, 2021 SCC 25.
Given that I propose to dispose of the first appeal by returning the matter to the Court of Appeal to decide the CBC’s motion, in my respectful view it would be inappropriate for this Court to decide the second appeal challenging the ban directly now, before the Court of Appeal has had a chance to reconsider the matter. Accordingly, I would adjourn the second appeal sine die.
In respect of standing, an order limiting court openness engages the constitutionally‑protected right of a free press to report on judicial proceedings (Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2,  1 S.C.R. 19, at para. 2; Vancouver Sun, at para. 26). When that order has been made in the absence of notice to the media, a representative of the media should generally have standing to challenge an order that threatens the open court principle where they are able to show that they will make submissions that were not considered in its making that could affect the result (see, generally, Hollinger, at paras. 36‑39). In practice, and properly in my view, standing is seldom refused to the media to participate in open court proceedings where it is sought (J. Rossiter, Law of Publication Bans, Private Hearings and Sealing Orders (loose-leaf), s. 8.1.10). Equally, a person directly affected by an order concerning court openness because it might harm their individual interests should, as a matter of course, have standing to challenge that order (see, generally, Ivandaeva Total Image Salon Inc. v. Hlembizky (2003), 63 O.R. (3d) 769 (C.A.), at para. 27). Courts should nevertheless retain some residual discretion to deny standing where hearing the motion would not be in the interests of justice, as in the case, for example, that it would unduly harm the parties or merely duplicate argument that is already before the court (Dagenais, at p. 869; White, at para. 12; see, e.g., Canadian Transportation Accident Investigation and Safety Board v. Canadian Press (2000), 184 N.S.R. (2d) 159 (S.C.), at paras. 18‑21). The requirement of standing, therefore, by limiting who may challenge a publication ban or sealing order, serves the goals of finality and mirrors the discretionary approach to standing that this Court has previously endorsed.
Second, as to delay, courts may decline to hear a motion to vary or set aside an order dealing with court openness made without notice if the moving party was unreasonably slow in bringing that motion after becoming aware of the order, such that it is no longer in the interests of justice to hear it. Once the moving party has become aware the order exists, they are then expected to take prompt action to challenge the order or otherwise acquiesce to its existence (see, e.g., 9095‑7267 Québec inc. v. Caisse populaire Ste-Thérèse-de-Blainville, 2001 CanLII 14878 (Que. C.A.), at para. 46; see also Rules of Civil Procedure, r. 37.14 (Ontario); Code of Civil Procedure, CQLR, c. C‑25.01, art. 349 (Quebec); Alberta Rules of Court, Alta. Reg. 124/2010, r. 9.15; Queen’s Bench Rules, r. 37.11 (Manitoba)). Strathy J., as he then was, explained that a timeliness requirement reflects the common sense presumption that “a party who sits on his or her rights in the face of a court order has accepted the legitimacy of the order” (Attorney General of Ontario v. 15 Johnswood Crescent, 2009 CanLII 50751 (Ont. S.C.), at para. 43).
In some instances, the legislature will provide indications of the appropriate period of delay. In the absence of legislative direction, courts must be guided by the purpose of the rule and the circumstances of each case (see, generally, Johnswood, at para. 45). As in other cases where courts are asked not to hear proceedings by reason of an unacceptable delay, the task is not a mechanical calculation, but rather a contextual balancing of finality and timely justice against the importance of the matter being heard on its merits (Marché D’Alimentation Denis Thériault Ltée v. Giant Tiger Stores Ltd., 2007 ONCA 695, 87 O.R. (3d) 660, at para. 34; 1196158 Ontario Inc. v. 6274013 Canada Ltd., 2012 ONCA 544, 112 O.R. (3d) 67, at para. 19). By way of example, under the Rules of Civil Procedure, a period of three months to bring a motion to set aside an order dismissing the action for delay was held to be reasonable in the context of one dispute (Toronto Standard Condominium Corporation No. 2058 v. Cresford Developments Inc., 2019 ONSC 801, 97 C.L.R. (4th) 306, at para. 36), but a largely unexplained ten‑month delay meant in another case that the applicant had not moved forthwith (1202600 Ontario Inc. v. Jacob, 2012 ONSC 361, at paras. 102 and 121 (CanLII)). In one Manitoba case, a delay of five months in moving to set aside a judgment was found not to be unreasonable in the circumstances (585430 Alberta Ltd. v. Trans Canada Leasing Inc., 2005 MBQB 220, 196 Man. R. (2d) 191, at para. 56). I stress, however, that this determination is inherently tied to the facts of each particular case and the nature of the issue raised. Especially where this delay has caused meaningful prejudice to the responding parties, courts may conclude it is not in the interests of justice to hear a motion. This requirement safeguards finality by circumscribing reconsideration in the temporal dimension.
On the basis of these principles, then, and in the absence of explicit legislation to the contrary, a court may vary or set aside an order concerning court openness it has made on timely motion by an affected person who was not given notice of the making of that order and to whom it is appropriate to grant standing for this purpose.
In sum, the Court of Appeal erred in concluding that r. 46.2 or the doctrine of functus officio deprived it of jurisdiction to hear the CBC’s motion. Said respectfully, the Court of Appeal’s interpretation of these principles was unnecessary to protect the values of finality and orderly appellate review. It had an adverse impact on the opportunity of the media to make representations in respect of this order limiting the open court principle. The better view is that the Court of Appeal retained jurisdiction to oversee its record even after the certificate of decision in the underlying proceeding on the merits was entered.
In sum, to the extent the requested relief required it to reconsider its publication ban, the Court of Appeal should have asked whether it was appropriate to vary or set aside that decision on motion by the CBC given it was made without notice. On the substance of the motion, the Court of Appeal should have considered whether any discretionary limits it imposed on publication of the court record, which includes the Posner affidavit, complied with the test for discretionary limits on court openness.
Finally, even if it were appropriate for this Court to decide the reasonableness of the CBC’s delay in bringing its motion, and even if its view was that the motion should have been dismissed on this basis, that conclusion alone would be insufficient to dismiss the appeal directly from the 2018 Publication Ban Judgment. This Court granted leave to appeal, and an extension of time to seek leave to appeal, directly from this separate judgment. I am of the respectful view that it would be inappropriate to effectively reverse these decisions or retroactively limit their scope. If this Court sought only to dispose of the reconsideration issues raised in the appeal from the 2019 Jurisdiction Judgment, it could have granted leave from that judgment alone. But it granted leave from both judgments.
The CBC has not acquiesced in the 2018 Publication Ban Judgment from which it appeals directly to this Court and, with respect for other views, this second appeal has not “lost its raison d’être” (Canadian Cablesystems (Ontario) Ltd. v. Consumers’ Association of Canada,  2 S.C.R. 740, at pp. 744 and 747). The question it raises is whether the publication ban should be set aside, which is an ongoing issue of live controversy between the parties, and which is distinct from the appropriateness of the reconsideration raised in the appeal from the 2019 Jurisdiction Judgment. There is no basis to say this second appeal has become moot.
Unlike in the first appeal bearing on the reconsideration motion, in the direct appeal from the 2018 Publication Ban Judgment there is no preliminary issue about the delay in bringing the motion, a motion that was not even filed before this judgment was rendered. The only issue in this second appeal is the validity of the final and indefinite publication ban imposed in the 2018 Publication Ban Judgment, which requires the application of the test for discretionary limits on court openness. To resolve this issue now, this Court would have to advert to and apply this test, including, with proper submissions, the recent judgment of this Court in Sherman. In my respectful view, that task should not be undertaken until the motion for reconsideration is resolved by the Court of Appeal."