The leading authority on the open court principle

[White Wolf]

Lesage v The Attorney General of Canada, 2023 ONSC 6444 (CanLII), at para 12, <https://canlii.ca/t/k1bnp#par12>, retrieved on 2025-07-03

ANALYSIS

Issue #1: Is the applicant entitled to the declaratory relief sought in the notice of application?

Parties’ Positions

[12] The applicant submits that the open court principle mandates that the respondent provide to him the Refused Information. Indeed, says the applicant, the entirety of the database in the “FRANK” system (which is used to manage records and information in this court) is subject to the open court principle and should be provided to the public.

[13] The respondent submits that the decision-making authority respecting the Refused Information rests exclusively with the court, which retains sole custody and control over it. The court having refused the applicant’s request for delivery to him of the Refused Information, the respondent must, it argues, abide by that refusal. The respondent also submits that there is a fundamental difference between what the applicant seeks on this application (i.e., the delivery of bulk information and data) and the available procedure for public access to court documents, including as prescribed by s. 137(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43. Finally, the respondent submits that the open court principle must be viewed through the lens of judicial independence and the intersection of those two principles must be “policed” by the court with great caution. This is particularly so where the issue involves the Ministry of the Attorney General, which, in our Province, is responsible for providing judicial infrastructure and support to this court, regularly appears in this court as the Crown’s chief legal officer and drafts statutory law that is interpreted and applied by this court.

Law

[14] Section 97 of the Courts of Justice Act provides as follows:

97 The Court of Appeal and the Superior Court of Justice, exclusive of the Small Claims Court, may make binding declarations of right, whether or not any consequential relief is or could be claimed.

[15] The court’s jurisdiction to grant declaratory relief “is only to be used when the declaration will have an effect on an existing dispute between the parties [and] is not to be given as an opinion on a hypothetical set of facts, or as an academic exercise to settle what may happen in the future” (see: 1472292 Ontario Inc. (Rosen Express) v Northbridge General Insurance Company, 2019 ONCA 753, at para. 22). Declaratory relief must be determinative of parties’ rights and “courts do not have jurisdiction to simply declare facts, detached from the rights of the parties” (see: Rosen Express, at para. 30).

[16] The leading authority on the open court principle is the decision of the Supreme Court of Canada in Sherman Estate v Donovan, 2021 SCC 25, in which the court reiterated a number of legal principles, including, without limitation, the following at paras. 1-3:

a. the open court principle is constitutionally protected as part of the right of freedom of expression and “represents a central feature of a liberal democracy”;

b. there is a strong presumption in favour of open courts;

c. inconvenience or embarrassment to participants in the justice system resultant from public scrutiny “is not, as a general matter, enough to overturn” this strong presumption; and

d. exceptional circumstances may arise “where competing interests justify a restriction of the open court principle”,

[17] Subsections 135(1) and (2) of the Courts of Justice Act provide as follows:

135 (1) Subject to subsection (2) and rules of court, all court hearings shall be open to the public.

(2) The court may order the public to be excluded from a hearing where the possibility of serious harm or injustice to any person justifies a departure from the general principle that court hearings should be open to the public.

[18] Section 137 of the Courts of Justice Act provides as follows:

137 (1) On payment of the prescribed fee, a person is entitled to see any document filed in a civil proceeding in a court, unless an Act or an order of the court provides otherwise.

(2) A court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.

(3) On payment of the prescribed fee, a person is entitled to see any list maintained by a court of civil proceedings commenced or judgments entered.

(4) On payment of the prescribed fee, a person is entitled to a copy of any document the person is entitled to see.

Decision

[19] I find that the applicant is not entitled to the declaratory relief sought in the notice of application.