Appeal under section 14 of the Cannabis Licence Act, 2018 S.O. 2018 c. 12 Sched. 2 from a Notice of Proposal to revoke licence.
Between:
T-Dot Auto Collision Inc. o/a Cannaverse
Appellant
and
Registrar, Cannabis Licence Act, 2018
Respondent
MOTION DECISION AND ORDER
ADJUDICATOR: Monica Ciriello, Vice-Chair
OVERVIEW
1The Appellant, T-Dot Auto Collision Inc. o/a Cannaverse was the subject of a Notice of Proposal to revoke its cannabis retail operator licence that was issued by the Registrar, Cannabis Licence Act, 2018. The Appellant appealed the proposal to the Tribunal.
2The Appellant has brought a motion seeking a confidentially order in relation to certain adjudicative records in respect of this matter. It argues that a confidentiality order is necessary in order to protect sensitive information about the Appellant and other third parties.
3The Registrar did not take a position on the outcome of the motion but did make submissions emphasizing the importance of adhering to the open court principle.
4For the reasons that follow, I find that redactions of some limited information relating to non-police third parties and the Appellant’s minor son are necessary and appropriate. The remainder of the Appellant’s motion is dismissed.
EVIDENCE & ANALYSIS
Background
5T-Dot Auto Collision Inc. was issued a cannabis retail operator licence on February 21, 2020. Yalini Manoharan is its sole director, officer and shareholder. On October 26, 2021, the Registrar issued a Notice of Proposal to Revoke (“NOP”) T-Dot’s licence after receiving certain information from the Durham Regional Police Service (“DRPS”).
6The NOP alleges that, based on the Appellant’s past conduct, there are reasonable grounds to believe that the Appellant will not be financially responsible or act in accordance with the law or with honesty or integrity. The Registrar’s NOP was based largely on the alleged conduct of Ms. Manoharan’s husband, Mano Subramanian. The Registrar provided a General Occurrence Report that had been prepared by the DRPS. The Occurrence Report relates to an investigation into the attempted murder of Mr. Subramaniam. According to the report both Ms. Manoharan and Mr. Subramanian are directly involved with organized crime.
7The Appellant filed a notice of appeal (“NOA”) requesting a hearing before the Tribunal. The NOP and Occurrence Report were attached to the NOA.
8In January 2022 Mr. Subramaniam brought a motion before the Tribunal seeking intervener status in this proceeding. The NOP and Occurrence Report were also attached to Mr. Subramaniam’s Notice of Motion (“Intervenor Motion”).
9The Appellant has brought its own motion seeking a confidentiality order with respect to certain paragraphs in the NOP, NOA, and Intervenor Motion, as well as a confidentiality order over the entire Occurrence Report.
10Specifically, the Appellant requests orders sealing public access to 3 paragraphs in the NOP (made an attachment to the NOA and Intervenor Motion) and 5 paragraphs of the NOA itself. They also request an order permitting the parties to file redacted versions of the materials for public consumption, and permission to contemporaneously file redacted copies of materials along with unredacted copies.
11The Registrar did not take a position on the outcome of the motion. Instead, it made submissions on the applicable law, including the Tribunal’s obligation to consider the public interest in open hearings.
12In reply, the Appellant submitted that its request was narrowly tailored, and that it had met its evidentiary burden for imposing a confidentiality order.
Legal Framework
13The Tribunal’s adjudicative records are generally open to the public, in accordance with the open court principle: see Toronto Star v. AG Ontario, 2018 ONSC 2586. The Tribunal Adjudicative Records Act, 2019 (“TARA”) requires that the Tribunal make its adjudicative records available to the public. Adjudicative records include the notice of appeal, the evidence that is admitted in the proceeding, parties’ submissions, and the Tribunal’s decisions, along with the other documents listed in s. 1(2) of TARA.
14As public access to adjudicative records is protected by s. 2(b) of the Canadian Charter of Rights and Freedoms, restrictions on access are exceptional. Pursuant to s. 2(2) of 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:
(a) matters involving public security may be disclosed; or
(b) 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.
15Rule 13.1 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”) is consistent with TARA and permits the Tribunal to restrict public access to the adjudicative record on the same grounds.
16The test established by the Supreme Court of Canada for ordering publication bans provides further guidance when considering whether to override the principle that tribunal records should be open to the public: Toronto Star at paras. 89-93; R. v. Mentuck, 2001 SCC 76 at para. 32. The test was recently recast by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25 (“Sherman Estate”).
17Sherman Estate outlines a three-part test. All three prerequisites must be met in order to properly impose a discretionary limit on openness:
court openness poses a serious risk to an important public interest;
the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
as a matter of proportionality, the benefits of the order outweigh its negative effects.
18The person seeking to restrict access to adjudicative records has the onus of displacing the general rule of openness. Upholding the presumption of openness generally involves a recognition that neither individual sensibilities nor mere personal discomfort associated with participating in judicial or quasi-judicial proceedings are likely to justify a restriction on the open court principle.
The Parties’ Positions
19As the party requesting a confidentiality order, the Appellant bears the burden of establishing that the test for a confidentiality order has been met. The bases for the Appellant’s request can be summarized as follows:
Certain paragraphs in the NOP and of the NOA consist of unproven allegations from an unnamed source that relate to highly sensitive matters. Public disclosure of these allegations would gravely damage Ms. Manoharan’s personal and professional reputations and would also expose her and her family to the risk of physical harm. Leaving the information unsealed could have a chilling effect on the Appellant’s participation in the proceeding;
Paragraph 8 of the NOP and paragraph 11 of the NOA contain information relating to the unsolved police investigations into the attempted murder of the Appellant’s spouse.
The Occurrence Report is not a public document, but instead a document from a criminal investigative file that contains detailed personal information including birthdates, addresses, and phone numbers of many individuals, including witnesses, suspects and Ms. Manoharan’s family. It also contains confidential information obtained by a search warrant, as well as excerpts of police interviews, snapshots of text messages from cellphones, and other sensitive information. The Appellant submits that releasing the report would likely prejudice any police investigation into Mr. Subramanian’s attempted murder and could endanger the safety of any person who cooperated in the investigation. The Appellant also asserts that any further public discussion of the attempted murder puts them at risk of further harm.
20The central thrust of the Appellant’s submission was that the information in question consisted of sensitive, confidential and unproven allegations, and that the harms they identified outweighed the public interest in maintaining public access to the adjudicative records. The Appellant made further submissions in this regard in its reply.
21As noted, the Registrar did not take a position on the outcome of the motion. It acknowledged that the Appellant targeted the areas of the documentary evidence to specific areas of concern rather than seeking a blanket confidentiality order or closed hearing for all purposes. It also submitted, however, that the Occurrence Report had been provided to it by the DRPS pursuant to s. 9 of the Cannabis Licence Act, 2018, and that certain redactions had been made to it before it was provided to the Registrar.
22The Registrar also submitted that some of the information for which the Appellant seeks a sealing order has already been publicly reported by the media. It included links to media articles that refer to the attempted murder, the general location of the Appellant’s house and the fact that the shooting may have taken place in the context of the “tow truck wars”. The Registrar also included a link to a YouTube video depicting the shooting (Mr. Subramanian’s identity was blurred) posted by the DRPS.
Has the Appellant Established a Basis for a Confidentiality Order?
The NOP and NOA
23I will first consider the request to restrict public access to paragraphs 4, 8 and 10 in the NOP, as well as paragraphs 2, 3, 4, 5 and 11 of the NOA. The relevant paragraphs in the NOP refer to the fact that the Registrar is alleging that Mr. Subramaniam and Ms. Manoharan are involved in organized crime, that they operate predatory tow trucks, and might be profiting from a fraudulent referral scheme involving physiotherapy clinics. They also indicate that the attempt on Mr. Subramanian’s life may have been a result of his involvement in the towing business. The relevant paragraphs in the NOA more or less say the same things. For the reasons that follow, I find that the Appellant has not established a basis for restricting public access to these portions of the adjudicative records.
24First, while protection from reputational harm can constitute an important public interest within the meaning of Sherman Estate, I am not satisfied that the Appellant has established a serious risk to her professional or personal reputational interests such that it would rise to the level of an important public interest necessitating a sealing order on the portions of the NOP that outline the Registrar’s allegations. I accept that the Appellant may suffer some reputational harm if this information were to be publicly accessible, however I am not satisfied that the identified harms rise to the level of warranting a confidentiality order.
25At this point the paragraphs in the NOP and NOA are simply allegations. They have not, as the Appellant submits, been proven. However, the purpose of the hearing before the Tribunal is to determine whether the Registrar can prove any of the allegations outlined in the NOP. If the Appellant is successful, the Tribunal’s decision explaining as much will be issued. The decision will be provided to the parties and will be publicly available under the open court principle and indeed will likely be published on in the ordinary course. In other words, the Appellant will be provided an opportunity to defend against the Registrar’s allegations, and to establish that they are false or wholly unsubstantiated, as it alleges. If the Registrar fails to prove its allegations the Appellant will have a Tribunal decision saying as much.
26I am also not persuaded that public access to these paragraphs may result in a chilling effect on the Appellant’s participation in the Tribunal process, such that it would result in an unfair hearing, which I accept could constitute a serious risk to the administration of justice. Moreover, I am not satisfied that the Appellant has established that maintaining openness in these records would likely jeopardize a police investigation. The DRPS provided these documents (or the information within them) to the AGCO, and made redactions before doing so. I would think that the Registrar, who received the documents under its statutory authority under the Act, would be the most likely party to make submissions regarding any impact on an investigation. As noted above, the Registrar does not take a position on whether a confidentiality order is necessary. The Appellant’s assertion that maintaining openness in the records might jeopardize an investigation is, in my view, speculative.
27I also conclude that a sealing order, which in my view is among the most intrusive of confidentiality orders, is not minimally impairing. The Appellant did not establish that a ban on publishing the impugned information would not protect the interests that they identified.
28Operating a cannabis retail store under the Act is a heavily-regulated activity. In my view there is a strong public interest in the public knowing the reasons why the Registrar seeks enforcement activity against a licensee. In my view, it would take a significant risk to the administration of justice to outweigh the negative effects of depriving the public of this most basic of important information. Had I concluded the Appellant had satisfied the first two branches of the test, I would have dismissed the request on the third branch of the Sherman Estate test.
Occurrence Report
29For the reasons given in relation to the NOA and NOP, the Appellant’s request for a confidentiality order over the entirety of the Occurrence Report on the basis that it consists of unproven allegations, will have a chilling effect on participation, and that it might jeopardize an investigation, is dismissed. However, in my view certain redactions to information in the Occurrence Report are necessary and appropriate.
30As noted, the Occurrence Report appears to have been authored by the DRPS. It contains a significant amount of third-party information, including names, birthdates, contact information and other details. It includes many details regarding Mr. Subramanian’s attempted murder, which remains unsolved. It consists of police interviews, notes, and photographs or transcripts of information obtained by a search warrant. There are references to Ms. Manoharan’s young son and personal details about neighbours and friends. The document is replete with personal identifiers such as telephone numbers, addresses, as well as driver’s licence and licence plate numbers belonging to both the Appellant and her family, but also to third parties not involved in this proceeding.
31I am satisfied that making the Occurrence Report public in its entirety would jeopardize the safety of the persons who spoke with police during the investigation. I am also satisfied that publishing identifiers regarding the Appellant’s son and third parties (other than police or AGCO) also poses a serious risk to the administration of justice. I am satisfied that the Appellant has met the first branch of the Sherman Estate test in relation this information. These personal identifiers were collected in the context of a police investigation into an attempted murder potentially involving members of organized crime. The information could be used to identify and even find the various individuals referred to in the Occurrence Report.
32It may be that, as the hearing progresses and more context is provided, public access to these identifiers no longer poses a serious risk to the administration of justice. As a result, I will limit my order in relation to the third-party personal identifiers, other than those belonging to the neighbours or the minor child, until 30 days after the Tribunal’s decision is released finally disposing of this matter. If the parties wish to extend the order beyond that period they may bring a motion. Alternatively, the presiding adjudicator may extend the order on their own motion if they consider it appropriate to do so.
33However, in the meantime I am satisfied that public access to significant personal identifiers such as phone numbers, email addresses, licence plate numbers and addresses, in the context of an attempted murder investigation, poses a risk to the safety of those persons such that it poses a serious risk to the administration of justice.
34In my view, what essentially amounts to a sealing order regarding that information satisfies the second branch of the Sherman Estate test. In my view, a less intrusive order such as a publication ban would not protect the interest at stake here. It would not prevent nefarious persons from ascertaining the personal details of the persons who assisted the police, or from obtaining information such as telephone numbers and addresses of third parties whose involvement is not entirely clear at this point. In my view this order is minimally impairing because I am not ordering that the public be excluded from the hearing, nor am I ordering the redaction of the entire Occurrence Report, but rather only identifying information relating to non-government third parties and minors. The public and the media can still obtain and report on the general “gist” of the document. Moreover, as noted above the order in relation to most third-party identifiers is time-limited and will expire following the hearing unless further action is taken.
35Finally, in my view, the benefits of this order outweigh the detrimental impact of limiting the open court principle. Most of the redacted information, if not all of it, consists of arguably peripheral identifiers that do not appear, at least at this point, to significantly relate to the merits of this proceedings. Thus, while the redactions will protect the safety of persons referred to in the report, they will not deprive the public of understanding the allegations and information made against the Appellant.
ORDER
36For the foregoing reasons, the Tribunal orders that:
(a) The public shall not be given access to the Occurrence Report unless the following identifiers have been redacted:
i. Any information that could reveal the identity of the neighbours who spoke with police following the attempted murder;
ii. Any personal information relating to the minor child; and
iii. All birthdates, names, addresses, phone numbers, driver’s licence numbers, licence plate numbers and other like information belonging to non-parties other than police or AGCO employees acting in their official capacity.
(b) This order shall be noted in the Tribunal’s physical and electronic filing system.
(c) The remainder of the Appellant’s motion is dismissed.
LICENCE APPEAL TRIBUNAL
___________________________
Monica Ciriello, Vice Chair
Dated: April 29, 2022