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INCIDENTAL PROCEEDINGS - Discontinuance - Effects

Friday, May 28, 2021 @ 2:22 PM  


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Appeal from a decision of the Quebec Court of Appeal affirming a decision that authorized respondent Centre intégré universitaire de santé et de services sociaux de l’Ouest‑de‑l’Île‑de‑Montréal (CIUSSS) to remove its exhibits from the court record in proceedings instituted against one of its former managers, Kamel. CIUSSS’s originating application alleged misappropriation of funds and was accompanied by an application for a Norwich order. The CIUSSS filed four exhibits in support of its applications, including an expert forensic accounting report. The Superior Court ordered that the entire record be sealed. The Journal de Montréal, a newspaper published by MediaQMI inc., devoted two articles to the seizures. Wishing to find out the details of the court proceedings, MediaQMI filed a motion to unseal, seeking access to the court record and the exhibits. The CIUSSS discontinued its originating application before the motion was heard. The motion judge found that the evidence was insufficient to depart from the principle of open court proceedings. He observed that the mere desire to avoid embarrassment for Kamel and negative publicity for the CIUSSS did not justify keeping the record confidential. The judge ordered that the record be unsealed. Because the proceeding had been terminated by a discontinuance, the judge authorized the CIUSSS to remove its exhibits from the court record. MediaQMI filed an appeal concerning the removal of the exhibits from the record. The Court of Appeal dismissed the appeal and upheld the CIUSSS’ right to retrieve the exhibits. On appeal to the Supreme Court of Canada, MediaQMI maintained that the CIUSSS’s discontinuance and the subsequent retrieval of the exhibits in issue did not make its application for access to the exhibits obsolete.

HELD: Appeal dismissed. Article11 of the Code of Civil Procedure (CCP) gave the public the right to have access to court records, subject to exceptions for confidential information. That right applied during and after a proceeding. It allowed the public to consult the exhibits filed in the record, but only if they were in the record at the time it was consulted. The content to which it gave access was governed in part by art.108. That provision authorized the parties to retrieve their exhibits by consent in the course of a proceeding, and required them to retrieve their exhibits once the proceeding had ended. Even after the proceeding had ended, the exhibits could be consulted as long as they remained in the record. But once the parties retrieved them or the court clerk destroyed them, they ceased to be part of the record to which the public could have access. The retrieval of exhibits from a record in the circumstances described in art.108, when an application to consult the record was pending, did not infringe a rule of public order. Articles 11 and 108 did not give rise to any judicial discretion. The CIUSSS’s discontinuance terminated the proceeding and restored matters to the state they were in before the application was brought. Because the proceeding had been terminated, the documents and real evidence filed as exhibits no longer had to remain in the Superior Court’s record. MediaQMI’s right to have access to court records was never compromised. Only the terms of access to the court record and the content of that record changed between the filing of its motion to unseal and the retrieval of the exhibits. If MediaQMI wanted to prevent the exercise of the power given by art.108 to the parties to a terminated proceeding, it had to contest the discontinuance extinguishing the proceeding. It did not do so. There was therefore nothing that prohibited the CIUSSS from retrieving its exhibits.

MediaQMI inc. v. Kamel, [2021] S.C.J. No. 23, Supreme Court of Canada, R. Wagner C.J. and R.S. Abella, M.J. Moldaver, A. Karakatsanis, S. Côté, R. Brown, M. Rowe, S.L. Martin and N. Kasirer JJ., May 28, 2021. Digest No. TLD-May242021009-SCC