Docket: A-227-15
Citation:
2016 FCA 80
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CORAM:
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DAWSON J.A.
NEAR J.A.
BOIVIN J.A.
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BETWEEN:
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GEORGE KIRIKOS
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Appellant
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and
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FRANK FOWLIE and
HER MAJESTY THE QUEEN
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Respondents
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REASONS
FOR JUDGMENT BY THE COURT
THE COURT
[1]
Mr. George Kirikos appeals an order rendered by Justice
Rennie, then at the Federal Court, (the Judge) dated April 24, 2015 (2015 FC
528) allowing in part Mr. Kirikos’ motion to set aside an order rendered by Justice
Scott (then at the Federal Court) on June 18, 2012 that all material related to
Court File T-1971-98, including the reasons of Justice Gibson issued on July 19,
2000, be kept confidential.
[2]
In granting in part the motion of Mr. Kirikos to
set aside the confidentiality order of Justice Scott, the Judge made public the
reasons for judgment of Justice Gibson with the exception of three redacted
words. The Judge also ordered that any medical reports in the said Court File
referencing Dr. Frank Fowlie’s personal medical information be sealed and kept
confidential by the Registry. The Judge made no order as to costs.
I.
Factual Background and Procedural Context
[3]
The genesis of the current dispute can be traced
back to nearly twenty years ago.
[4]
In 1998, Dr. Frank Fowlie filed a judicial
review application in the Federal Court challenging an administrative decision regarding
employment disability benefits. On July 19, 2000, Justice Gibson dismissed the application
for judicial review in Fowlie v. Canada, [2000] F.C.J. No. 1145, 187
F.T.R. 255 (QL) [Fowlie v. Canada]. In 2002, Dr. Fowlie noticed that the
reasons for judgment in Fowlie v. Canada were posted on the Federal
Court website. In the second paragraph of these reasons, there was a reference to
Dr. Fowlie’s medical condition. Dr. Fowlie thus contacted the Ottawa
Registry of the Federal Court on February 22, 2002 and requested that the
internet version of Justice Gibson’s decision on the Federal Court’s website be
amended so as to remove his personal medical information.
[5]
On March 4, 2002, in an era when the internet
was still nascent, Justice Gibson issued a direction and acceded to Dr. Fowlie’s
request (Compendium of the appellant at tab 3). In doing so, Justice Gibson did
not issue a confidentiality order pursuant to Rule 151 of the Federal Courts
Rules, SOR/98-106 nor did he amend his reasons by order. Rather, he
directed that personal medical information found in paragraph 2 of his reasons be
deleted from the Federal Court’s website. As a result, although Dr. Fowlie’s
personal medical information was deleted from Justice Gibson’s reasons posted
on the Federal Court’s website, it remained accessible through the Registry
Office and, more importantly, in other public sources such as CanLII.
[6]
In 2004, Mr. Kirikos, the appellant in the
present matter, lodged a complaint with the Internet Corporation for Assigned
Names and Numbers (ICANN) regarding a determination made pursuant to the Universal
Domain Name Resolution Policy (UDRP). At that time, Dr. Fowlie was the
Ombudsman of ICANN. After some communication with Mr. Kirikos, Dr. Fowlie determined
that he lacked jurisdiction to hear Mr. Kirikos’ complaint.
[7]
A number of years later, in February 2011, Mr. Kirikos
published two tweets on his Twitter account about Fowlie v. Canada,
which included a link to the decision available on the CanLII website. He also
posted a tweet that revealed Dr. Fowlie’s medical condition. At that point, Dr.
Fowlie realized that, notwithstanding the direction issued by Justice Gibson in
2002, his medical condition was in fact public and accessible via public databases
other than the Federal Court’s website, namely CanLII.
[8]
In May 2011, Dr. Fowlie filed a complaint before
the Human Rights Tribunal of Ontario on the basis that Mr. Kirikos’ tweets
constituted discrimination on disability grounds. Realizing subsequently that the
Human Rights Tribunal of Ontario lacked jurisdiction, Dr. Fowlie then withdrew
his complaint. On May 31, 2011, Mr. Kirikos posted on his blog that Dr.
Fowlie’s complaint had been “entirely frivolous and
totally devoid of merit” and further included a link to the Fowlie v.
Canada decision. He also wrote a tweet about the blog post in which he
included a link to the same.
[9]
A year later, in May 2012, Dr. Fowlie filed a
motion requesting a confidentiality order on the entire underlying file related
to his 1998 judicial review application and Justice Gibson’s resulting reasons
for judgment (Court File T-1971-98). It is worthy of note that in making this
motion, Dr. Fowlie named the Crown, not Mr. Kirikos, as the respondent. The
Crown was served with the motion but declined to make any written submissions
and did not appear. Mr. Kirikos was not served with Dr. Fowlie’s motion for a
confidentiality order and the proceeding therefore unfolded without him having knowledge
of it.
[10]
On June 18, 2012, Justice Scott acquiesced to
Dr. Fowlie’s request and granted a “wall-to-wall” confidentiality order for all
materials related to Court file T-1971-98.
[11]
On June 26, 2012, Dr. Fowlie used Justice Scott’s
confidentiality order to approach Twitter and request that Mr. Kirikos’ tweets
be removed. Twitter initially responded to Dr. Fowlie that it did not get
involved in disputes between users. However, Twitter eventually contacted Mr. Kirikos
requesting that he delete the tweets. In doing so, Twitter included a copy of
its communication with Dr. Fowlie as well as a copy of Justice Scott’s confidentiality
order. Prior to Twitter’s request, Mr. Kirikos had no knowledge of the confidentiality
order rendered by Justice Scott.
[12]
On November 1, 2012, Mr. Kirikos filed a notice
of motion to set aside the confidentiality order of Justice Scott. The Judge granted
the motion in part and ordered that the reasons for judgment of Justice Gibson
dated July 19, 2000 be made public, with the exception of the three redacted
words and that medical information related to Dr. Fowlie be sealed and kept
confidential. It is that decision which is under appeal.
II.
Statutory provision
[13]
Rule 151 of the Federal Courts Rules:
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Motion for order of confidentiality
151 (1) On motion, the Court may order that material to be filed
shall be treated as confidential.
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Requête en confidentialité
151 (1)
La Cour peut, sur requête, ordonner que des documents ou éléments matériels
qui seront déposés soient considérés comme confidentiels.
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Demonstrated need for confidentiality
(2) Before making an order under subsection (1), the Court must be
satisfied that the material should be treated as confidential,
notwithstanding the public interest in open and accessible court proceedings.
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Circonstances justifiant la confidentialité
(2) Avant de rendre une ordonnance en
application du paragraphe (1), la Cour doit être convaincue de la nécessité
de considérer les documents ou éléments matériels comme confidentiels, étant
donné l’intérêt du public à la publicité des débats judiciaires.
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III.
Standard of Review
[14]
The standard of review for questions of law is
correctness. Questions of fact and mixed fact and law in respect of which there
is no extricable question of law are reviewed on the standard of palpable and
overriding error (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R.
235).
IV.
Issues
[15]
This appeal raises the following issues:
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Did the Judge err in fact or in law in applying
the test for granting a confidentiality order?
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Did the Judge err in fact or in law by ordering
that a portion of references to Dr. Fowlie’s medical information in the
Court File T-1971-98 be redacted?
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Did the Judge err in declining to order costs in
favour of Dr. Fowlie?
V.
Analysis
[16]
Before this Court, Mr. Kirikos essentially
argues that the Judge failed to identify and apply the appropriate legal
principles in assessing whether to issue a confidentiality order. Specifically,
Mr. Kirikos alleges that the Judge erred in allowing a portion of the reasons
for judgment of Justice Gibson (three words) be redacted.
[17]
Dr. Fowlie cross-appeals and submits that he
should have been awarded costs and that the Judge further erred in failing to
redact all references to his medical information in the Court file T-1971-98.
[18]
At the outset, this Court observes that this
case serves as a telling illustration of the challenges posed by the
publication of decisions in the internet era. The starting point in addressing
such challenges is the long-standing open court principle, a corollary to the
fundamental right of freedom of expression as guaranteed in subsection 2(b)
of 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. In Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC
41, [2002] 2 S.C.R. 522 [Sierra Club], the Supreme Court of Canada observed
the following at paragraph 36:
The link between openness in judicial
proceedings and freedom of expression has been firmly established by this
Court. In Canadian Broadcasting Corp. v. New Brunswick (Attorney General), [1996]
3 S.C.R. 480, at para. 23, La Forest J. expressed the relationship as follows:
The principle of open courts is
inextricably tied to the rights guaranteed by s. 2(b). Openness permits
public access to information about courts, which in turn permits the public to
discuss and put forward opinions and criticisms of court practices and
proceedings. While the freedom to express ideas and opinions about the operation
of the courts is clearly within the ambit of the freedom guaranteed by s. 2(b),
so too is the right of members of the public to obtain information about the
courts in the first place.
Under the order sought, public access and
public scrutiny of the Confidential Documents would be restricted; this would
clearly infringe the public’s freedom of expression guarantee.
[19]
What is meant by the “open court principle”? In
a nutshell, it signifies that in Canada, unless otherwise stated, all court
proceedings, including all material forming part of a court’s records, remain
publicly available. As such, confidentiality orders are the exception. Orders
such as the one requested in this case are granted only in exceptional
circumstances to avoid deleterious effects on the principle of open courts and
freedom of expression (Sierra Club and Irwin Toy Ltd. v. Québec
(Attorney General), [1989] 1 S.C.R. 927, [1989] S.C.J. No. 36 (QL)).
[20]
In order to obtain a confidentiality order, an
applicant must meet the test set out by the Supreme Court in both Dagenais v.
Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, [1994]
S.C.J. No. 104 and R. v.
Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442. The test is known as the Dagenais/Mentuck
test and was reformulated in Sierra Club to include protection for
commercial interest.
[21]
Specifically, under the Dagenais/Mentuck
test, a party seeking a confidentiality order must demonstrate that:
1. the order is necessary to prevent a serious risk to the proper
administration of justice, because reasonably alternative measures will not
prevent the risk, and;
2. the salutary effects of the order outweigh the deleterious
effects on the rights and interests of the parties and the public, including
the effects on the right to free expression, the right of the accused to a fair
and public trial, and the efficacy of the administration of justice.
[22]
In Sierra Club, which concerned technical
information regarding an ongoing environmental assessment for the construction
of nuclear reactors, the Supreme Court stated the following at paragraph 60
with regard to confidential orders:
Such an order requires the applicant to
demonstrate that the information in question has been treated at all relevant
times as confidential and that on a balance of probabilities its proprietary,
commercial and scientific interests could reasonably be harmed by the
disclosure of the information: AB Hassle v. Canada (Minister of National
Health & Welfare) (1998), 83 C.P.R. (3d) 428 (F.C. T.D.), at p. 434. To
this I would add the requirement proposed by Robertson J.A. that the
information in question must be of a “confidential nature” in that it has been “accumulated
with a reasonable expectation of it being kept confidential” as opposed to “facts
which a litigant would like to keep confidential by having the courtroom doors
closed” (para. 14).
[Emphasis added]
[23]
In Named Person v. Vancouver Sun, 2007
SCC 43, [2007] 3 S.C.R. 253 [Named Person], the Supreme Court ruled that
in the context of informer privilege in criminal cases, prior publication
defeats the privilege (at para. 116; see also the decision from this Court in Leahy
v. Canada (Minister of Citizenship and Immigration), 2012 FCA 227, [2012]
F.C.J. No. 1158).
[24]
Although the contexts in Sierra Club and
Named Person are somewhat different from the one at issue, they are not
sufficiently different to distance this case from the principles that have
emerged in the jurisprudence and the unequivocal language of the Supreme Court
with respect to the extreme caution that must be exercised in granting
confidentiality orders given their effect on the entrenched and guaranteed right
to freedom of expression.
[25]
Applying these principles to the present case, we
note that Dr. Fowlie’s medical information has been available and in the public
realm for over a decade. In fact, the information was first adduced by Mr. Fowlie
in a public Federal Court file in 1998. The information was further used in an
application by Dr. Fowlie before the Human Rights Tribunal of Ontario and later
before the British Columbia Small Claims Court, and in these instances, Dr.
Fowlie did not seek a confidentiality order, therefore allowing the information
to remain public.
[26]
As a result, the Court does not accept that the information
related to Dr. Fowlie’s medical condition has been “treated at all times as
confidential” nor does it accept that it has been “accumulated with a
reasonable expectation of it being confidential” (Sierra Club, at para.
60). Moreover, the language of Rule 151 is prospective in nature: it confines
the Court’s ability to make confidentiality orders in connection to materials “to
be filed” as opposed to materials that have already been filed. In the
present circumstances, the fact that the information in question has been public
for more than a decade weighs heavily against granting the confidentiality
order sought by Dr. Fowlie.
[27]
It follows that, to the extent that the Judge proceeded
with his analysis without addressing the issue as to whether Dr. Fowlie’s
medical information was treated at all relevant time as confidential, this was
an error.
[28]
As this is dispositive of the appeal, it is not
necessary to address the additional alleged errors with respect to the Judge’s application
of the Dagenais/Mentuck and Sierra Club framework, more
particularly in relation to the “necessity” and “balancing” factors.
[29]
On the cross-appeal, in his memorandum of fact
and law at paragraph 47, Dr. Fowlie requests that this Court “order a publication ban forbidding the publishing of his
medical diagnosis”. However, since Dr. Fowlie did not request a
publication ban in his notice of cross-appeal, this Court shall not make a
ruling in this regard. Moreover, Dr. Fowlie has failed to persuade the Court
that any confidential order is justified at law.
[30]
Dr. Fowlie also asserts that he was entitled to
costs in the Federal Court. We are of the view that the Judge exercised his
discretion appropriately in refusing to award costs to Dr. Fowlie. There
is no reason that would warrant the intervention of this Court on that issue.
[31]
Consequently, we will allow the appeal without
costs and dismiss the cross-appeal without costs. Rendering the order that the
Judge should have rendered, the confidentiality order in respect of Court File
T-1971-98 will be set aside in its entirety.
[32]
The outcome of this appeal is obviously not the
one sought by Dr. Fowlie. The price to pay for freedom of expression is that it
will sometimes protect hurtful comments such as the ones at issue made by Mr.
Kirikos on social media. However, despite the protracted relationship between Dr.
Fowlie and Mr. Kirikos and the fact that Mr. Kirikos obtained the information
from publicly available sources, we fail to understand what purpose, if any, Mr.
Kirikos had in retrieving and disseminating medical information regarding Dr.
Fowlie filed nearly twenty years ago.
“Eleanor R. Dawson”
“D.G. Near”
“Richard Boivin”
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