FINANCIAL SERVICES TRIBUNAL
2013 ONFST 3
Decision No. P0510-2012-1
IN THE MATTER OF the Pension Benefits Act, R.S.O. 1990, c. P.8, and the Financial Services Commission of Ontario Act, 1997, S.O. 1997, c. 28;
AND IN THE MATTER OF a Notice of Intended Decision of the Superintendent of Financial Services to Refuse to Make an Order under section 87 of the Act relating to the Pension Plan for Crown Life Insurance Company Employees, Registration Number 0346601;
AND IN THE MATTER OF a Hearing in accordance with subsection 89(8) of the Pension Benefits Act, R.S.O. 1990, c. P.8.
B E T W E E N:
CARL HUNTE
APPLICANT
and
SUPERINTENDENT OF FINANCIAL SERVICES
RESPONDENT
and
THE CANADA LIFE ASSURANCE COMPANY
ADDED PARTY
BEFORE:
Elizabeth Shilton
Vice-Chair of the Tribunal and Chair of the Panel
SUBMISSIONS:
For the Applicant – Carl Hunte
For the Superintendent of Financial Services – Mark Bailey
For the Added Party, The Canada Life Assurance Company – Jeff Galway
REASONS FOR DECISION ON A MOTION FOR A CONFIDENTIALITY ORDER
I. INTRODUCTION
1On April 15, 2013, the Canada Life Assurance Company [Canada Life] filed a Notice of Motion seeking “an order that the DV Members Lists (as described below), which are documents that Canada Life intends to file with the Tribunal in connection with the hearing of this matter, be held in confidence by the Tribunal and not be placed on the public record or disclosed to the Applicant”.
2Together with the Notice of Motion, Canada Life filed an affidavit sworn February 27, 2013, from Wallace Robinson, Assistant Vice-President, Pension Benefits at Canada Life, describing the documents for which the order is sought, and reasons why it is sought. The Notice of Motion requested, pursuant to Rule 14.01(b) of the Tribunal’s Rules of Practice and Procedure, that the motion be dealt with in writing.
3Both the Applicant and the Superintendent agreed to Canada Life’s proposal that the motion be dealt with in writing. By emails dated April 25, 2013, both generally supported the motion on the merits. Neither filed any supporting documents or made any submissions.
4Accordingly, the Tribunal will deal with the issues on the basis of the written materials filed by Canada Life.
5For the reasons which follow, the Motion is dismissed, with leave to refile should it become appropriate to do so at a later point in accordance with these reasons.
II. THE FACTS
6As set out in the Pre-Hearing Conference Memorandum dated December 28, 2012, the matter at issue in Mr Hunte’s Application is as follows: “Is the Applicant entitled to a deferred pension or any other entitlement from the Plan, and if so, in what amount?”
7Among the documents Canada Life proposes to tender in evidence at the hearing are four lists of deferred vested members of the Plan, dated January 29, 1991, January 20, 1992, March 2, 1993, and September 8, 1993. These lists are described in Mr Robinson’s affidavit as including the full names of deferred vested members, together with their individual pension certificate numbers, their dates of birth, their dates of entry into the Plan, their dates of termination from the Plan, the amounts of their monthly pension benefits, the dates of pension commencement, the amounts of their accumulated contributions, and the amounts of any refunded contributions, together with the dates of any such refunds.
8Mr. Robinson testifies in his affidavit that “[t]he above information is inherently sensitive, personal and confidential. It is treated as confidential by Canada Life and is not publicly available”.
9He also testifies that “Canada Life intends to tender the D-V Member Lists as evidence to show simply that the Applicant’s name is not included on those lists. The names that are included on those lists are not relevant to the issues in this proceeding.”
10It is evident from both the Superintendent’s Notice of Intended Decision, and the Applicant’s Request for Hearing that resolution of this issue may require an examination of the Applicant’s status in the Plan (i.e. the Pension Plan for Crown Life Insurance Company Employees, Registration Number 0346601) over a period of time which includes the dates on the documents for which Canada Life seeks this order.
11Canada Life’s Notice of Motion indicates that it objects to filing an abridged version of the document for filing on the public record “due to the inherently sensitive, private and confidential nature of the information contained in these documents”.
III. THE APPLICABLE LAW
12In considering a motion for a confidentiality order, the Tribunal is governed by Rule 11 of its Rules of Practice and Procedure. The relevant portions of that Rule provide as follows:
Confidential Documents
11.01 A party or an interested person may bring a motion for an order that all or any part of a document filed with the Tribunal or served on the parties be held in confidence, provided that the motion is brought at the earliest opportunity.
11.03 The material in support of any motion to hold a document in confidence shall:
(a) address:
(i) the reasons for the request including the nature and extent of the specific harm that might result if the document were publicly disclosed; and
(ii) any objection to placing an abridged version of the document on the public record and the reasons for such an objection; and
(b) be filed and served on the parties.
11.06 After giving the person claiming confidentiality an opportunity to reply to an objection, the Tribunal may order that:
(a) the document be placed on the public record;
(b) the document be held in confidence;
(c) the document be provided to certain parties and/or their representatives upon filing an undertaking of confidentiality; or
(d) an abridged version of the document be placed on the public record;
and may make such other order as it considers just.
11.07 In considering a request under this Rule, the Tribunal shall apply the criteria in Rule 24.02.
13Rule 24.02, referred to in Rule 11.07, governs the circumstances under which the Tribunal will order that all or part of a hearing will be heard in the absence of the public. It provides as follows:
24.02 The Tribunal may direct that a hearing, or part of a hearing, be held in the absence of the public if it is of the opinion that:
(a) matters involving public security may be disclosed; or
(b) intimate financial or personal matters or other matters may be disclosed at the hearing of such a nature that, having regard to the circumstances, the desirability of avoiding disclosure thereof in the interests of any person affected or in the public interest outweighs the desirability of adhering to the principle that hearings be open to the public.
14There is no issue of public security in this case which would trigger Rule 24.02(a). Accordingly, the matter must be addressed under Rule 24.02(b), which requires the Tribunal to weigh the “open court” principle against any competing private or public interests that may arise in the particular case before it. Such a decision is very fact- and context-specific.
15In Kernius et al v Superintendent of Financial Services, FST File No. P0303-2008 Decision No. P0303-2008-1 (pp.6-7) the Tribunal addressed the issues that must be considered in determining when the open court principle should give way to other considerations:
The Supreme Court of Canada has on numerous occasions emphasized the strong public interest in the openness and transparency of legal proceedings. …
The public policy in favour of openness in adjudicative proceedings is a very strong one, reflected in Tribunal Rule 28 which contemplates that in the normal course, all hearings will be open to the public. ….
Rule 28.02 also, of course, gives the Tribunal the discretion to order that a hearing, or part of a hearing be closed….This is a discretion that the Tribunal must exercise judicially, however, on the basis of the evidence before it and with due regard to the public policy in favour of public hearings. If the matter arises under the PBA, a public statute, by definition it engages the public interest. Parties who seek the benefit of Rule 28.02 must persuade the Tribunal that the case is an exceptional one that should fall outside the general presumption that all aspects of a hearing should be public.
While Kernius dealt with as an application under Rule 28.02, the same principles are applicable under Rule 11.
16Guidance on how to apply Rule 11 may also be obtained from the decision of the Supreme Court of Canada in Sierra Club of Canada v. Canada (Minister of Finance) 2002 SCC 41, [2002] 2 S.C.R. 522, in which the court confirmed that both the open court principle (and the exceptions to that principle) apply not just to hearings, but also to the evidence filed in those hearings. In Sierra Club, the court set out guidelines for making orders protecting the confidentiality of evidence. Iacobucci J., speaking for the court, acknowledged that while confidentiality orders may be appropriate in certain cases, courts must also keep in the foreground the public interest in open justice:
In opposition to the confidentiality order lies the fundamental principle of open and accessible court proceedings. This principle is inextricably tied to freedom of expression enshrined in s. 2(b) of the Charter….. The importance of public and media access to the courts cannot be understated, as this access is the method by which the judicial process is scrutinized and criticized. Because it is essential to the administration of justice that justice is done and is seen to be done, such public scrutiny is fundamental. The open court principle has been described as “the very soul of justice”, guaranteeing that justice is administered in a non-arbitrary manner: …
17He articulated the following test for balancing the competing interests involved [para.53]:
A confidentiality order ... 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; and
(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.
18With respect to the question of whether alternative measures might suffice to protect the interests involved without the need to resort to a confidentiality order, Iacobucci J. noted that “the phrase ‘reasonably alternative measures’ requires the judge to consider not only whether reasonable alternatives to a confidentiality order are available, but also to restrict the order as much as is reasonably possible while preserving the ... interest in question” [para. 57].
19The Sierra Club rules were directly addressed to courts and involved the application of the Federal Court Rules. Those rules must, of course, be adapted appropriately to the adjudicative proceeding in which they are being applied. However, their general principles are clearly applicable to tribunals such as the Financial Services Tribunal which operate subject to the Statutory Powers Procedure Act to enforce public statutes within a regulatory environment. Those principles clearly direct us to make confidentiality orders only when they are necessary to protect important interests, and only where reasonably alternative measures will not suffice to protect those interests. A confidentiality order is an extraordinary order, and the onus lies on the party seeking it to justify a departure from the norm that evidence in a public proceeding becomes part of the public record.
IV. ANALYSIS
20Based on the material before me, I am not persuaded that a confidentiality order is necessary. In my view, “reasonably alternative measures” of the type contemplated by Sierra Club are available to protect the interests at issue in the lists Canada Life proposes to file. Specifically, those interests can be fully protected by filing a redacted version of the lists in which the names of the listed deferred vested members appear, but from which other personal information has been deleted. Lists redacted in this way would serve Canada Life’s purposes, since the Robinson affidavit makes it clear that Canada Life intends to rely only on the names (and indeed, only on the absence of the Applicant’s name) for purposes of its case.
21The interest that Canada Life invokes as the basis for its motion is essentially a privacy interest. In his affidavit, Mr. Robinson asserts that “[t]he above information is inherently sensitive, personal and confidential. It is treated as confidential by Canada Life and is not publicly available”. There is no assertion of any specific harm that would flow to the persons named or to any other person from disclosure of the information on the lists; the difficulty identified is simply that filing the documents on the public record would place in the public domain information that has previously been held confidential.
22The Tribunal is mindful of the desirability of protecting privacy, insofar as the protection of privacy is compatible with the open court principle. It is particularly mindful of the desirability of protecting the privacy of third parties, such as pension plan members or former members, who are not parties to the proceeding and are not in a position to assert their own privacy concerns. I commend Canada Life for asserting this interest on their behalf. I am not persuaded, however, that in this context, a privacy interest in a name is sufficient to outweigh the strong interest in conducting the Tribunal’s proceedings in public. I would have had more concern if any party sought to rely on some of the other information on the documents, such as dates of birth and personal financial information of the types that might place individuals at risk of identity theft. This is a harm from which the Tribunal would certainly seek to protect both parties and non-parties in appropriate cases. In most cases, however, as in this one, it is likely that the parties themselves can ensure that privacy interests are protected by ensuring that information of this type is removed from documents prior to tendering them in evidence where it is not material to the matters in issue. The legal principles certainly demand resort to such measures before Tribunals are asked to make confidentiality orders.
23I note that as contemplated by the Tribunal’s Rules, Canada Life has expressed an objection to filing an abridged version of the documents on the public record. The reason given to support that objection, however, is “due to the inherently sensitive, private and confidential nature of the information contained in these documents”. A reason such as this simply restates the party’s position that the material should remain confidential; I have already made it clear that, with respect to redacted versions of the lists, I do not agree. Reasons like this are not helpful in addressing any practical problems that might arise from redaction, such as those discussed in Sierra Club, which made it an unworkable solution in that case.
24Redaction is not always a solution. In this case, however, it would appear to be a relatively simple project which would meet the needs of all parties. Canada Life seeks to rely only on the absence of the Applicant’s name on the lists. It is unlikely that the Applicant would be prejudiced by filing lists which include only names, since he was prepared to agree to a form of order in which the lists would not be disclosed to him at all. Presumably the same applies to the Superintendent, since he was likewise prepared to agree to the proposed order. Should redaction raise issues not already canvassed, the form of our order leaves open the possibility of a new motion from any party. Certainly that option exists if either the Applicant or the Superintendent finds that redacted versions of the lists tendered by Canada Life are insufficient for their purposes.
25In refusing to make the order sought, I am mindful that all parties were prepared to consent to it. The Tribunal was faced with the same situation in Kernius. In that decision, the Tribunal made it clear that consent to such an order cannot be determinative: “The Tribunal is a statutory tribunal, administering a public statute. It has public responsibilities to the administration of justice that cannot be abrogated by agreement of the parties.” This does not mean, of course, that consent can never be a factor. In clear cases, the Tribunal may make such orders more expeditiously when all parties consent. The Tribunal would also encourage parties to cooperate in approaching the Tribunal with draft orders which have been crafted to take into account the careful balance of interests which must be considered. Parties must always be mindful, however, of the compelling public interest at issue here, which may well over-ride other and more private concerns.
26One further observation. In its Notice of Motion, Canada Life’s proposed order would keep the material filed confidential even from the Applicant. In para. (o) of its Notice of Motion, it suggests an alternative: that the lists be disclosed to the Applicant only “upon the filing by the Applicant of an explicit undertaking of confidentiality, and that any copies of the DV Member Lists be first redacted to remove all information except for the date of birth of the Plan members, the title of the documents and the headings of the columns in the documents”. Since I have dismissed Canada Life’s motion, it is not strictly necessary to comment on these proposals, but I have chosen to do so in order to provide guidance in future motions and to other users of the Tribunal’s services. Confidentiality orders normally restrict public access to the evidence; an order which restricted a party’s access would be truly extraordinary, and it is difficult to imagine circumstances which might emerge before the Tribunal in which such an order would be justified. Likewise, an order which imposes special restrictions on a party with respect to evidence would not be routinely made even if a confidentiality order would otherwise be justified. Parties seeking orders of this type should expect to be called on to provide a solid evidentiary foundation for conditions of this sort.
IV. ORDER
27The motion is dismissed, with leave to refile should it become appropriate to do so in accordance with these reasons.
Dated at Toronto, this 2nd day of May, 2013.
“Elizabeth Shilton”
Elizabeth Shilton
Vice-Chair of the Tribunal and Chair of the Panel