Date: 20080728
Docket:
IMM-2639-08
Citation:
2008 FC 916
Ottawa, Ontario, July 28, 2008
PRESENT:
The Honourable Mr. Justice Blanchard
BETWEEN:
John
Doe
Applicant
and
Minister
of Justice
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
applicant filed an application for leave and judicial review of
[translation]
[t]he interim decisions of February 22 and
March 4, 2008, and the final decision of the Minister of Justice made on or
about May 23, 2008, appointing 28 lawyers as special advocates under
the IRPA and rejecting the applicant’s application.
[2]
The
application for judicial review is based on the following grounds:
[translation]
There was an unlawful delegation of
powers.
The decision is unlawful.
No regulation establishing the selection
criteria for special advocates was adopted.
The decision maker erred in law by not
considering the criteria set out in the Immigration and Refugee Protection
Act and described in the call for applications.
The decision maker used arbitrary
selection criteria.
The decision maker disregarded the
applicable fundamental principles of staffing.
The rule of law must prevail.
Setting the decisions aside will not
cause any prejudice because, inter alia, other options are
available in pending cases or in future cases requiring a special advocate.
Alternatively, some appointments are
tinged with favouritism, not based on the merits and are unlawful.
The confidentiality order is based on the
following:
The applicant took part in a selection
process in good faith, on the basis that his participation would be
confidential. His participation was unlawfully [sic] to at least 43 applicants,
which caused him humiliation, trouble and inconvenience and damaged his
reputation.
He fears that his reputation will be
irreparably damaged if these proceedings reveal that his application was
rejected and that the rejection was connected with the security investigation, as
suggested by the respondent’s e-mail to the 44 applicants dated January 31, 2008;
more details will be given in the motion record to follow. The impugned
decisions suggest that he is an unqualified lawyer.
He will quite simply no longer be able to
earn his living from his professional activities.
[3]
If
leave is granted, the applicant seeks the following relief by way of judicial
review:
An order setting aside the decisions
appointing the special advocates and rejecting the applicant’s application.
A confidentiality order with respect to
the identity of the applicant and the respondent’s other victims as well as any
information that could identify them. A motion record to this effect will
follow.
If the motion is dismissed, an order granting
an extension of time to serve and file an amended application for leave and
judicial review.
An extension of time in this court if the
documents requested from the respondent are not transmitted in a timely manner.
If necessary, an extension of time to
serve and file this proceeding.
[4]
In
this motion in writing, under Rule 369 of the Federal Courts Rules (Rules),
the applicant seeks to:
[translation]
Obtain an exemption from the obligation to
disclose his name in the style of cause of all proceedings by replacing it with
John Doe (section 66 of the Federal Courts Rules, section 5 of the Federal
Courts Immigration and Refugee Protection Rules).
Obtain an exemption from the obligation to
disclose his name in any affidavit or oath (section 80 of the Federal Courts
Rules) and to sign John Doe instead. In the alternative, obtain leave to produce,
serve and file an affidavit or affidavits of his lawyer (section 82 of the Federal
Courts Rules).
Obtain a confidentiality order granting him
leave to bring the application for leave and judicial review and this motion
record under the name of John Doe; that the applicant’s affidavit or affidavits
and oaths be made in the name of John Doe, to conceal any information that
might identify him in all documents submitted to the court: as an example, but
not limited to: his home and e-mail addresses, date of birth, place of
practice, curriculum vitae, titles such as: Ms. Mr. In the alternative, an
order that all proceedings and exhibits be sealed.
Obtain an order to conceal information in any
document that could identify the respondent’s other victims who were not
selected as special advocates. In the alternative, an order that documents
containing information that could identify them be sealed.
Obtain an order that any decision, any Court
registry – where the applicant’s name must appear – will identify him as John
Doe.
Obtain an order that this motion, affidavit in
support of this motion and exhibits be sealed.
I. Evidence
[5]
In
support of his motion for exemption and confidentiality, the applicant filed an
affidavit containing 74 paragraphs. In the following paragraphs, I summarize
the relevant portions of this evidence that pertain to the motion before the Court.
[6]
In
December 2007, the respondent published an expression of interest soliciting
applications from private sector lawyers interested in being appointed as
special advocates under the new provisions of the Immigration and Refugee
Protection Act, 2001, c. 27 (the IRPA/the Act).
[7]
The
applicant submitted his application in December 2007. The Minister of Justice put
the names of 28 lawyers on the list of special advocates established under
section 85 of the Act, but the applicant’s name was not on the list.
[8]
As
part of processing his application, the applicant submits, and it is not
denied, that a departmental employee circulated his name by e-mail on January
31, 2008, to 43 applicants without his consent, thus revealing his confidential
participation in the selection process for special advocates. The Department
had undertaken to keep the applicants’ participation in the selection process
confidential.
[9]
The
applicant argues that his reputation was damaged by the respondent’s actions in
the selection process. He bases this on the fact that the other applicants
found out that the applicant had not been accepted, which casts serious doubts
on his reputation and respectability.
[10]
The
applicant essentially maintains that the news releases issued by the Minister
announcing the list of [translation]
“qualified” applicants suggest that the applicants who were not chosen were not
qualified.
[11]
The
applicant states that he filed this motion to prevent further humiliation and
damage to his reputation. The objective of the motion is to safeguard the applicant’s
privacy and identity and that of the applicants who were not chosen by the
respondent as special advocates.
II. The law
[12]
The
public interest in open and accessible court proceedings is vitally important to
the Canadian justice system. The open court rule is akin to freedom of
expression, a protected right under the Canadian Charter of Rights and
Freedoms, Part I of The Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[13]
Before
making a discretionary order under subsection 151(1) of the Rules, the Court
must be convinced that it is necessary to treat the documents or materials as
confidential. In Sierra Club of Canada v. Canada (Minister of Finance),
2002 SCC 41, [2002] 2 S.C.R. 522 at paragraph 53, the Supreme Court set out the
following test for determining whether a confidentiality order should be granted:
53.
. . .
A
confidentiality order under Rule 151 should only be granted when:
(a) such an order is necessary in order to
prevent a serious risk to an important interest, including a commercial
interest, in the context of litigation because reasonably alternative measures
will not prevent the risk;
(b) the salutary effects of the
confidentiality order, including the effects on the right of civil litigants to
a fair trial, outweigh its deleterious effects, including the effects on the
right to free expression, which in this context includes the public interest in
open and accessible court proceedings.
[14]
Accordingly,
the applicant must demonstrate that the salutary effects of protecting his
identity in his application for leave and judicial review outweigh the public
interest in open and accessible court proceedings.
III. Analysis
[15]
In this case, the applicant states that his reputation will be further
damaged by having his identity divulged as a party to this proceeding and to
the application for leave and judicial review. He submits that his files come
to him through word of mouth and that the resource persons would stop referring
files to him if they found out that his application to the Department was
rejected. Moreover, the applicant states that disclosing his application to the
43 other applicants would cause him humiliation, trouble and inconvenience and damage
his reputation.
[16]
After reviewing the applicant’s entire affidavit filed in support
of the motion to justify the necessity for a confidentiality order, I am of the
view that this evidence does not justify the Court granting the order sought.
The evidence does not satisfy me that there is a serious risk to the
applicant’s reputation and privacy. The deleterious effects that the applicant
alleges are not supported by the evidence. The applicant’s statements are
speculative and insufficient to disregard the open court rule. Under the
circumstances, the salutary effects for the applicant that could result from issuing
the order he seeks do not outweigh the deleterious effects, particularly the public
interest in open and accessible court proceedings.
[17]
Moreover, although the applicant seeks to set aside the decisions
appointing the special advocates and rejecting his application, his arguments
about alleged damage to his reputation and privacy are not relevant to the
application for judicial review that underlies this motion. Rather, the
application challenges the process whereby the special advocates were selected,
as set out in the notice of application. On this point, I essentially concur
with the respondent’s submissions.
IV. Conclusion
[18]
For
these reasons, the motion will be dismissed with costs.
[19]
The
applicant will be granted a fifteen-day extension from the date of this order
to allow him to have issued and to serve and file an amended notice of
application for leave and judicial review indicating the applicant’s real name
in the style of cause.
ORDER
THE COURT ORDERS that
1.
The
motion is dismissed with costs.
2.
The
applicant is granted a fifteen-day extension from the date of this order to allow
him to have issued and to serve and file an amended notice of application for
leave and judicial review indicating the applicant’s real name in the style of
cause.
“Edmond P. Blanchard”
Certified
true translation
Mary Jo Egan,
LLB
Email this Content