ONTARIO COURT OF JUSTICE DATE: September 29, 2021 COURT FILE No.: 2811-998-21-28100415-00

IN THE MATTER OF AN EX PARTE APPLICATION, PURSUANT TO s. 4 OF THE PREVENTION OF AND REMEDIES FOR HUMAN TRAFFICKING ACT, 2017

Before: Justice P.K. Burstein Heard on: September 29, 2021 Reasons for Judgment released on: September 29, 2021

Counsel: K. Beale............................................................................................ counsel for the Applicant ................................................................................... No one appearing for the Respondent

BURSTEIN J.:

Introduction

[1] I have been presented with an application pursuant to s. 4 of the Prevention of and Remedies for Human Trafficking Act, 2017, seeking an order compelling “John Doe” [1] to remain away from “Jane Doe” for the next 3 years and for John Doe to destroy any intimate images of Jane Doe which remain in his possession. The application was presented to me ex parte, meaning that John Doe is, as yet, unaware that it has been brought. He will only be made aware of the application if and when an order is granted. Only then will he be entitled to respond to the allegations in the application.

[2] Normally, ex parte applications heard in this Court do not result in a ruling or in reasons from the judge hearing the matter. However, in the circumstances of this particular case, this being the first such application filed in the Ontario Court of Justice courthouse in Oshawa, it was appropriate to provide reasons for my decision.

[3] On September 22, 2021, counsel from the Ministry of the Attorney General (“MAG”) contacted the trial coordinator of the Ontario Court of Justice in Oshawa to request the scheduling of a “hearing” for a “Human Trafficking Restraining Order” application pursuant to the Prevention of and Remedies for Human Trafficking Act (the “Act”). Counsel’s intention was to have the application presented at a hearing before me on Monday, September 27, 2021.

[4] In accordance with the terms of the Act, counsel intended the application to be made ex parte, that is, without notice to the person who is the target of the proposed restraining order. When consulted by the trial coordinator, I agreed that it would not be necessary to have the application heard in court. [2] Given that the application was going to be brought ex parte, and that any such hearing would be held in camera (i.e., “off the record”), I was content to receive and consider the application in writing. Indeed, judges of the Ontario Court of Justice regularly receive ex parte applications in writing only for other forms of judicial authorizations. I was informed that counsel for MAG agreed to the proposed process.

[5] I received an electronic version of the written application by email on the morning of September 28, 2021. I was provided with two documents: a Form 1 “Application for Restraining Order” and a Form 2 “Consent to Person Acting on Behalf”. Regrettably, because of a very busy docket in the Oshawa “youth court” on September 28, 2021, I was unable to attend to the application until after business hours. When I did finally have time to begin reviewing the application, due to the relative infancy of the governing legislation and the deficiencies in the application materials presented to me (which I will address more fully below), I required a bit more time to articulate my concerns and, hopefully, to provide guidance for future applications.

The legislative framework

[6] In 2017, the Ontario government enacted the Prevention of and Remedies for Human Trafficking Act, 2017 as a means of affording a more accessible route to court-ordered protections for victims of the sex trade. In effect, the Act create a way for persons adversely affected by the sex trade to obtain “civil remedies” to prevent or address the resulting harms. Unlike other civil remedies legislation, such as the property of crime forfeiture regime in the Civil Remedies Act, 2001, the Prevention of and Remedies for Human Trafficking Act, 2017 made the Ontario Court of Justice (“OCJ”) the court of first instance, that is, the court in which applications for relief under the Act must first be sought.

[7] As I have noted above, despite the fact that the legislation has been in existence for several years, this is the first such application brought before the OCJ in Oshawa. A brief search of online legal databases revealed that there is only one reported case involving an application under the Act – A.P. v. P.B.S., [2021] O.J. No. 4472, a decision of Bishop J. released on August 25, 2021. In that case, Bishop observed:

I can find no reported cases under this legislation and was advised by the applicant's counsel that there have been 36 cases, but none have been released.

It is worth noting that counsel for the applicant in the case before Bishop J. is also counsel for the Applicant in the case before me.

[8] The Prevention of and Remedies for Human Trafficking Act, 2017 authorizes a judge of this Court to make “a restraining order” aimed at persons who have “engaged or may engage in the human trafficking of the victim”: s. 4(2). Those restraining orders may contain “any reasonable condition that the court considers necessary or advisable for the protection of the victim”: s. 4(4). The terms or the order may be imposed for up to three years, but may be extended for longer than that if necessary: ss. 5(1) and 5(6).

[9] In addition to the victim themselves, persons acting on behalf of a victim may bring an application for a restraining order. The application may be brought without prior notice to the target of the proposed order (i.e., the “respondent”) where the court determines that “the victim is in immediate or imminent danger from the respondent”: s. 6(1). An application may be heard in person, in writing or by video conference: Regulation, s. 14(1). If granted without notice, the restraining order would not take effect unless and until the respondent was served with the order (or was deemed to have been served in accordance with the Regulation): s. 6(2). In such cases, once served, the respondent may apply to the court to vary or set aside the order: s. 6(3).

[10] Under the heading “evidence”, the Act prescribes that “a court may receive and base decisions on evidence considered by the court to be trustworthy in the circumstances”. I note that the sole accompanying Regulation – Restraining Order Applications and Appeals, O. Reg. 346/18 (“Regulation”) – sets out 11 forms to be used in proceedings under the Act. One such form (Form 5) is an affidavit. In other words, while viva voce testimony may be contemplated on the hearing of some applications, sworn written evidence is also allowed.

[11] In addition to providing for applications to be brought without notice to a respondent, the Act also empowers a judge to ban publication of “any information that could identify the person” when it is “necessary for the proper administration of justice”: s. 10(2). The publication ban is mandatory when the application involves a child victim or witness. In cases not involving a child victim or witness, the Act requires the application judge to inform the victim and witnesses of their right to request a publication ban: s. 10(3). The Act does not, however, automatically trigger a publication ban as a result of an application having been brought or granted without prior notice to the respondent.

[12] Orders which are granted under the Act must be in the form prescribed by the Regulation - Form 9 for restraining orders and Form 10 for all other orders: Regulation, s. 15. If the hearing was “held in writing”, the judge must complete the order and then note the “date and place of issuance”: Regulation, s. 15(4). Once granted, orders issued under the Act must be served “as soon as possible” on any of the affected parties who were not present for the application. A variety of service methods are set out in the Regulation, including provisions to dispense with actual service when necessary or appropriate.

[13] Where a restraining order was made as a result of an application without notice, a respondent who ultimately receives a copy may apply to the court which made the order to set aside or vary the order: s. 6(3). On any such review, the onus remains on the party who originally applied for the restraining order to justify it. Decisions from a judge of this Court that are made at the conclusion of an inter partes hearing (i.e., one in which both sides appear) may be reviewed by appeals to the Superior Court of Justice: s. 11. However, parties may apply to a judge of this Court to set aside or vary an existing restraining order on the basis that there has been a material change in circumstances: s. 7(1).

[14] For the sake of completeness, the Act also creates a “tort of human trafficking”. As those provisions are exclusively focused on civil proceedings in the Superior Court, I have not summarized them here.

The framework for ex parte applications under the Act

[15] I begin by stating the obvious: in our legal system, there is a strong presumption in favour of affording anyone affected by a court order the opportunity to be heard before the order is made. There must, of course, be exceptions to that fundamental principle of “natural justice”. The process by which search warrants and other investigative authorizations are obtained is a prime example. In order to avoid frustrating the purpose of those judicial authorizations to investigate or prevent crime, courts allow the applications to be heard without notice to the affected parties. In legal parlance, that is referred to as having the application brought ex parte, a Latin phrase meaning “by or for one party”.

[16] While recognizing the practical need to allow courts to hear some applications ex parte, the common law has long demanded strict adherence to some basic rules designed to promote fairness and to prevent any abuse of the court’s process. One such rule is that a party applying for a court order on an ex parte basis must provide the application judge with “full, fair and frank disclosure” of the information relevant to the judge’s determination. Put simply, as the only party presenting information to the authorizing judge, the applicant must fairly present both sides of any relevant potential factual dispute.

[17] In a similar vein, ex parte applicants are required to present the judge with an evidentiary record that is both accurate and complete. Because of the ex parte nature of the application, parties are expected to scrupulously avoid errors or omissions. When considering ex parte applications, judges must not readily excuse mistakes or gaps in the applicant’s materials, especially when those flaws relate to factors which are material to the application.

[18] I see no reason for exempting the “without notice” applications permitted by the Act from the basic common law requirements for ex parte applications. The Act and Regulation both recognize that ex parte applications are to be the exception and not the norm. They are only to be brought when there is evidence capable of persuading a judge that the victim is in imminent danger. The legislative scheme provides for evidence in support of an application to be presented in affidavit form, just like the ex parte investigative applications authorized by the Criminal Code. Accordingly, I am satisfied that ex parte applications under the Act can, and should, be supported by evidence which provides a complete and accurate record of the relevant information.

[19] The Regulation already prescribes the forms which must be used to present the ex parte application under the Act. At a minimum, an ex parte written application for a restraining order under the Act must contain the following: a clear statement of the grounds upon which the order is sought, the terms of the restraining order being sought, whether or not a publication ban is sought (and, if so, the grounds therefor) and, most importantly, some form of sworn evidence to support the application. The “Form 1” prescribed by the Regulation is capable of satisfying some of those minimum requirements as it specifically prompts the applicant to provide certain information under oath or affirmation. However, where the victim is not a “child” (where the publication ban would otherwise be mandatory), the Form 1 application filed on an ex parte application must also address whether or not there is a request for a publication ban, the grounds for such a request, and the duration and terms of the proposed ban.

[20] As noted above, the Regulation also demands that any order sought by an ex parte application be issued in accordance with the prescribed forms – Form 9 for restraining orders and Form 10 for all other orders (including, it would seem, an order banning publication). The Regulation requires a judge granting a restraining order to note “the time, date and place of issuance”. That requirement can only effectively be achieved if the applicant includes a draft copy of the proposed order. Indeed, the forms include a wide range of potential terms to include in an order granted under the Act. Consequently, either the Form 1 notice of application must specify the terms sought using the language employed by Form 9 and Form 10 or the applicant must include a draft copy of the proposed order checking off the specific conditions sought on the application.

Application of the appropriate framework to this ex parte application

[21] The ex parte application I received in this case contained some material omissions and was also misguided in one respect. The application included a Form 2 “Consent to Person Acting on Behalf” authorizing Jane Doe to bring the application on behalf of Jane Doe, the person identified as the victim of human trafficking. The inclusion of this Consent form was both confusing and unnecessary. The Act clearly says that a person claiming to be the victim of human trafficking may apply for a restraining order. The Form 2 filed in this case was unnecessary and confusing.

[22] The Form 1 “Application for Restraining Order” was incomplete in several key respects. The second page of the notice portion of the form clearly requires the applicant to indicate whether they are bringing the application with or without notice. In this case, neither of those two options are checked. The very next section of the form requires the applicant to identify the status they are asserting to bring the application. In this case, there was no notation on the form whether the applicant was purporting to be a victim, a person acting on behalf of a victim, or a person with lawful custody of a child victim. The next section of the form requires the applicant to specify whether they are asking the application to be heard in court, in writing or by video conference. Again, none of the options are checked off.

[23] The next section of the Form 1 poses a series of questions about “factors relevant to [the] application”. The questions and answers follow the form’s earlier statement that the applicant “swears/affirms that the following is true”. In this case, the Form 1 was signed by Jane Doe above a direction that it “be signed in front of a lawyer, justice of the peace, notary public or commission for taking affidavits”. There is a signature in the space allotted for the commissioner. I am satisfied that the Form 1 presented to me on this ex parte application provided an evidentiary foundation for the restraining order requested.

[24] The questions in the Form 1 are specifically aimed at addressing the list of factors set out in s. 4(3) of the Act -- factors which a judge is directed to consider on an application for a restraining order. The last question addressed by the Form 1 is aimed at “without notice applications only” and invite the applicant to articulate the evidentiary basis for an ex parte application.

[25] In this particular case, I found the information provided by the applicant in the Form 1 to be cogent and compelling. It readily satisfied me that the test set out in s. 4(2) of the Act for issuance of a restraining order – “reasonable grounds that the respondent has engaged or may engage in the human trafficking of the victim” – had been met. It also satisfied me that the test for proceeding with the application on an ex parte basis has been met.

[26] Unfortunately, the Form 1 Application in this case was entirely silent about two key aspects. Despite its claim that there was a need to proceed ex parte, the Application said nothing about imposing a publication ban. According to the legislative scheme, any order granted pursuant to an ex parte application only becomes effective once it is served (or deemed served) upon the respondent. Without a ban on publication there is a real risk that publication of the identity of the applicant could defeat the purpose of having proceeded on an ex parte basis. Nevertheless, in view of the fundamental importance of the “open courts” principle, it would be dangerous for an application judge to simply assume that a ban on publication is always necessary and appropriate to prevent frustration of an ex parte restraining order. The Form 1 in this case also said nothing about how and when the applicant expected the restraining order would be served upon the respondent. Without any information as to any delay expected in serving the restraining order (marking the moment it would actually take effect), an application judge could not know how long any such publication ban should be made to last. Indeed, it would be helpful for ex parte applications under the Act to address issues relating to the anticipated service of a restraining order upon the respondent as part of the Form 1 evidence.

[27] Given that the application in this case was brought ex parte, I contemplated whether its failure to meet the strict common law requirements for ex parte applications ought to result in its dismissal, albeit without prejudice to a renewed application. However, because the basis of the ex parte nature of this application was a claim that the victim was in imminent danger, I decided that it would be more appropriate to grant an interim version of the order being sought and allow the applicant to rectify the deficiencies; that is, a restraining order for a period of 30 days rather than the 3-year period sought in the application. In effect, the applicant will have time to serve and file a properly prepared application to extend the duration of the order for the 3-year period. In addition, the respondent will hopefully have been served with the interim restraining order and will therefore be in a position to participate in the process should he so desire.

[28] Order to go accordingly.

Released: September 29, 2021 Signed: Justice P.K. Burstein

Footnotes

[1] Given the nature of the application I have decided to use pseudonyms in this Ruling rather than the parties’ real names. The reason for that will become clear later in this Ruling.

[2] I note that when I agreed to the ex parte application in writing I did not yet have any information about the proposed application beyond the fact that a restraining order was being sought under the Act.