Those questions underlie a novel Ontario case that may spark debate about the scope and interplay of the constitutional principles of judicial independence and open courts and about what transparency and accountability obligations to the public the judicial branch has, if any, to enable litigants, the media, the bar and other justice system actors to know and assess courts’ progress in providing timely access to justice to civil litigants.
Robert Bauman, retired Chief Justice of British Columbia
A similar view was expressed in a personal injury decision last year by a panel of the Ontario Court of Appeal, which deplored the lack of published court performance metrics and public access to such aggregated data in Ontario’s superior courts: Moffitt v. TD Canada Trust, 2023 ONCA 349.
“It is an unfortunate state of affairs that neither the Superior Court of Justice in Ontario nor the Court of Appeal for Ontario publishes information about how they manage and dispose of their caseload,” Justice David Brown wrote on behalf of Justices Lorne Sossin and Jill Copeland. “The lack of detailed, consistent operational data from those courts and the resulting lack of transparency, impedes the ability to understand and then improve the performance of those courts. To gain some understanding of how those courts deal with cases in practice, one is left to resort to the imprecise tool of examining cases reported on CanLII,” the panel observed. “The absence of comprehensive institutionally-reported data therefore makes it difficult to deal empirically with questions of litigation policy and process, such as those that arise in this case.”
The issue cropped up again last month in a different per curiam Ontario Court of Appeal decision, which is headed for the Supreme Court of Canada: Lesage v. Ontario (A.G.), 2024 ONCA 500.
Michael Lesage, Michael’s Law Firm
The Toronto civil litigator sought all the case numbers for matters disposed of by trial since 2015 to be identified, compiled and produced for him. His requests were denied by Chief Justice Morawetz and also by Ontario’s Ministry of the Attorney General (MAG), which deferred to the chief justice to decide whether and what court records could be released.
Lesage then turned to the Ontario Superior Court for relief against the ministry’s denial of the records. However, the Court of Appeal dismissed Lesage’s appeal from a Nov. 15, 2023 decision by Superior Court Justice Charles Chang, the applications judge: Lesage v. Ontario (A.G.), 2023 ONSC 6444.
Justice Chang exercised his discretion not to issue declarations that would have recognized that Lesage has rights of inspection and production of civil court file numbers for cases that went to trial. Justice Chang reasoned that issuing such declarations would serve no practical purpose as they would not affect the dispute between the applicant and the attorney general’s ministry since it is the judicial branch — and not the executive branch of government — that has authority over whether to release court records.
“This conclusion is not only a reasoned one, but it is unassailable,” the Court of Appeal affirmed. “Simply put, MAG, the other party before the application judge is not empowered to decide whether to identify, compile and produce the requested information. It is obvious in these circumstances that the requested declarations ‘would be detached from the rights of the parties’ and would have no effect on the existing dispute between the parties.”
(Lesage did not appeal the application judge’s rejection, on jurisdictional and other grounds, of Lesage’s additional request for mandamus compelling disclosure of the records.)
The Court of Appeal also did not accept Lesage’s argument that since Chief Justice Morawetz and the Superior Court could not properly be made parties to the application for relief, the requested declarations might still influence the chief justice and the court to disclose the requested records.
“It is evident that consideration of the potential impact of the declarations on the Office of the Chief Justice would have changed nothing,” the appeal panel said. “The application judge’s conclusion that the constitutionally protected principle of judicial independence requires that ‘control over access to and disclosure of any information or documentation created by or for the judiciary to carry out administrative tasks directly related to the judicial function, by necessity, rests with the judiciary’ was uncontested. That conclusion undermines any realistic prospect that the declarations, if made, could or would assist Mr. Lesage in securing the compiled information he seeks.”
Added the appeal panel, “The Office of the Chief Justice is a judicial office, no doubt fully cognizant of the interests at stake.”
Moreover, “and perhaps most importantly, its decision to deny the initial request and the request for reconsideration were arrived at as a matter of prerogative through the exercise of judicial independence,” the panel said. “We are not persuaded in these circumstances that the declarations, if made, could realistically have inspired the Office of the Chief Justice to reconsider, and we are not persuaded that had the application judge considered this prospect, his decision may have been different.”
Continued the panel, “The fact that the power to make this decision belonged to the court through the Office of the Chief Justice pursuant to the constitutionally protected principle of judicial independence is a powerful consideration in support of the application judge’s discretionary decision not to purport to weigh in on that decision by making the requested declarations.”
Lesage, a trial lawyer whose boutique firm specializes in complex civil cases involving professional negligence, business litigation, insurance coverage disputes and serious injuries, told Law360 Canada he will seek leave to appeal to the Supreme Court of Canada.
Thomas Slade, Supreme Advocacy
“The Court of Appeal has, in effect, eviscerated the open court principle in Canada, deeming the public entitled only to so much transparency or accountability that the court itself decides to provide,” Lesage said. “If upheld, this precedent will limit media access to court records and restrict the public from reasonably evaluating court performance, despite constant calls for more [court] funding and more judges.”
Slade noted that the Court of Appeal acknowledged that Lesage took the correct procedural approach by not seeking orders against the chief justice of the Superior Court, but rather named the Attorney General of Ontario, as respondent.
However, the appeal court went on to affirm that as only the attorney general was involved, any declarations would be detached from the rights of the parties and have no effect on the existing dispute between the parties.
“In other words, ‘You were right by not naming the chief justice,’ but since he’s not a party, that makes it harder to get a declaration,” Slade remarked. “These court decisions don’t technically remove all recourse, but they certainly make it very difficult to mount any sort of challenge. What’s particularly unfortunate is that we’re not any further along in terms of knowing the scope of the open court principle and whether it applies to knowing [case] clearance rates. ... We see the court being careful not to confirm Justice Chang’s conclusions about the limited reach of the open court principle.”
Lesage said the open court principle, as interpreted by the Supreme Court of Canada, effectively provides that court records are presumptively public records to which the public has a right of access, apart from limited exceptions protecting interests of higher importance. “And this case just indicates, ‘Well, that might be true, but if the court declines to produce them, you in the public and the press have no recourse whatsoever.’”
He added, “I think the remedy would have been for the Court of Appeal to apply the open court principle and/or for the Supreme Court to make such a ruling.”
Lesage said knowing operational information about courts, such as disposition times in the backlogged and delay-plagued Ontario Superior Court, is an important consideration for lawyers and can impact their clients’ access to justice.
“Throughout my career, I’ve always helped regular people and, in a lot of cases, that requires a lawyer who’s willing to invest significant amounts of time and money — effectively on contingency — in the hopes of both winning the case and collecting so as to get paid,” he explained, by way of example. “And so if you’re able to start a case, and push it through court to a resolution in, say, a two-year period, you’re going to be able to take certain cases. Whereas if you ... knew that ... if you filed it in court tomorrow, you’re almost certainly not getting paid for four or five or six years, it simply renders a much larger number of cases as simply unfeasible to take on that basis,” he said. “That means ... many members of the public who could have legal representation are denied that representation ... so it’s a major hurdle for people to access justice”
The Court of Appeal panel said it considered it unnecessary to “address fully” the application judge’s holding that although the open court principle includes the public’s ability to view and copy court documents, it does not extend to requiring the aggregation, sorting or categorization of bulk data.
Nor did the appeal panel find it necessary to comment on Justice Chang’s holding that even if the open court principle does extend to the aggregation, sorting and categorization of bulk data, the application judge would still have refused to make the requested declarations as “decisions relating to the access and disclosure of documentation generated by the judiciary rests exclusively with the court, and the court having made its decision to deny the request ‘is the end of the matter.’”
“It is clear that his conclusions about the reach of the open court principle played no role in his decision that the declarations would serve no useful purpose,” the appeal court explained. “It follows that even if the application judge had been wrong about the scope of the open court principle, which we need not decide, his conclusion in this regard did not taint his discretionary decision.”
Last April, the Canadian Judicial Council (CJC), comprising the 44 chief and associate-chief justices of the country’s federally appointed courts, published the seventh edition of Blueprint for the Security of Court Information. The publication states that the governance of court information and technology rests with the judiciary and that judicial information, “irrespective of who created it, or how it was created,” includes adjudicative information related to the exercise of a judicial function as well as information related to judicial administration.
“Regardless of who has custody or access, the judiciary always has ownership of judicial information,” wrote Martin Felsky who prepared the publication. Under the heading “Judicial Independence,” Felsky states “responsibility for court information policies, including information security, is a judicial function and, as such, rests with the judiciary.”
As agreed by the parties, Lesage was ordered by the Court of Appeal to pay $5,000 in costs to the Ontario attorney general (on top of $10,000 in costs awarded at first instance.)
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