Elaine Wham v. Registrar of Motor Vehicles, 2021 CanLII 82770

Date: 2021-07-20

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act.

Between:

Elaine Wham

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Colin Osterberg, Member

Appearances:

For the Appellant: Elaine Wham, Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: July 15, 2021

REASONS FOR DECISION AND ORDER

OVERVIEW

1Elaine Wham (the “appellant”) appeals the impoundment of her motor vehicle under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The appellant’s motor vehicle was impounded on June 6, 2021. At the time of the impoundment, the driver was driving with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.

2The appellant appeals on the ground that the vehicle was stolen at the time it was detained for the purpose of impoundment.

PRELIMINARY ISSUE

3As a preliminary matter, the appellant requested a confidentiality order whereby her name would be omitted from mention in the proceedings including the decision regarding the appeal.

4Normally, the Tribunal’s decisions include the names of the parties to the proceeding, in accordance with the open court principle: see Toronto Star v. AG Ontario, 2018 ONSC 2586.

5As public access to tribunal proceedings is protected by s. 2(b) of the Charter of Rights and Freedoms, the Tribunal will only exceptionally restrict public access to the identity of parties by anonymizing or initializing their names in its decisions. Before the Tribunal will grant a request to anonymize a decision, it must be satisfied that the interest that the order is meant to protect in a particular case outweighs the public interest in including that information in the publicly accessible decision.

6Pursuant to s. 2(2) of the Tribunal Adjudicative Records Act (“TARA”), the Tribunal may order that all or part of an adjudicative record be treated as confidential and not disclosed to the public if the Tribunal determines that:

(1) matters involving public security may be disclosed; or

(2) intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.

7Rule 13.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version 1 (October 2, 2017) (“Rules”) is consistent with TARA and permits the Tribunal to restrict public access to the adjudicative record on the same grounds.

8Recently, the Supreme Court of Canada reframed the test for restricting court openness in Sherman Estate v. Donavan, 2021 SCC 25. In that case, the Court held that, in order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that:

(1) court openness poses a serious risk to an important public interest;

(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and

(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

9The person seeking to restrict access has the onus to displace the general rule of openness. The open court principle takes primacy over privacy interests, and exceptions to openness must be proven on a case-by-case basis: Toronto Star at para. 91.

10The reason that the appellant gives for requesting that her name be omitted from mention in the proceedings is that she is concerned about the impact that the publication of the facts surrounding this appeal may have on an ongoing civil action against her arising out of an incident which occurred several years ago. In particular, the appellant says that she believes that her position in this other matter will be weakened if the opposing parties in that matter learn of the impoundment that is the subject of the current appeal.

11I find that the appellant has not provided sufficient justification for a confidentiality order. The appellant is essentially requesting that the Tribunal assist her in concealing what she considers to be relevant evidence from the other parties, and potentially the courts, in an action unrelated to the present appeal. That does not amount to acting so that the “public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public” for the purposes of TARA, nor does it qualify as an order that is “necessary in order to prevent a serious risk to the proper administration of justice” for the purposes of the Dagenais/Mentuck test. Under the test in Sherman Estate, the appellant has failed to prove that openness in this matter poses a serious risk to an important public interest.

12Rather, by acceding to the appellant’s request, the Tribunal would be acting in a manner contrary to the public interest and in opposition to the proper administration of justice by assisting the appellant in her intention to deny the parties and the courts in the other action access to relevant evidence.

13I find that the confidentiality order requested by the appellant should not be granted in the circumstances.

WITHDRAWAL OF APPEAL

14After I advised the parties of my decision to dismiss the appellant’s request for a confidentiality order, the appellant stated that she wished to withdraw her appeal. She stated that she was concerned that the decision, when published, would negatively impact her position in the civil action as noted above.

15The appellant also stated that she had been advised by the Tribunal that, if her request for a confidentiality order was rejected and she then withdrew her appeal, the order would maintain her anonymity. The appellant relied on this understanding, supported by the fact that the Case Conference Report and Order used her initials in the style of cause, when she proceeded with the request for the confidentiality order.

16The Registrar consented to the use of the appellant’s initials in this decision.

17I advised the parties that I would consider the appellant’s request to continue the use of her initials in this order based on the appellant’s assertion that the Tribunal had led her to believe her name would remain initialized should her request for the confidentiality order be denied.

18While I accept that the appellant believed that her identity would remain anonymous if the confidentiality order was not granted, after reviewing the emails that were exchanged between the appellant and the Tribunal, I find that there was no assurance provided to the appellant to that effect. The appellant did not advise anyone at the Tribunal, including at the hearing, that she was under this impression until after I had advised the parties of my decision.

19For the same reasons as given above, the appellant has not proven that the openness of this proceeding poses a serious risk to an important public interest or that restricting openness is necessary in order to prevent a serious risk to the proper administration of justice. As discussed above, the appellant’s reasons are restricted to the protection of her personal interests.

20In the circumstances, the appellant’s request for confidentiality of this order is denied.

ORDER

21For the reasons set out above, the appellant’s request for a confidentiality order covering the appeal hearing is denied. The appeal is withdrawn at the appellant’s request, and thus this matter is concluded.