Hollinger Inc. et al. v. The Ravelston Corporation Limited et al.

[Indexed as: Hollinger Inc. v. The Ravelston Corp.]

89 O.R. (3d) 721

Court of Appeal for Ontario,

Laskin, Juriansz and Rouleau JJ.A.

March 28, 2008

Charter of Rights and Freedoms -- Freedom of the press -- Motion judge making sealing and protective orders in respect of material filed on motion for Mareva injunction -- Newspaper applying for intervenor status for purpose of challenging those orders and seeking to set aside orders -- Motion judge erring in dismissing newspaper's motion -- Motion judge failing to give sufficient weight to freedom of press and failing to balance interests properly when applying Dagenais/Mentuck test.

On a motion brought by the plaintiff without notice to A-B and B, the motion judge granted a Mareva injunction against A-B and B freezing their worldwide assets. B was facing a number of highly publicized criminal charges in the United States at the time. The motion judge made a sealing order and a protective order in relation to the motion material. When they received notice of the Mareva order, A-B and B moved to set it aside. A newspaper brought a motion: (a) for intervenor status for the purpose of challenging the sealing and protective orders; (b) for permission to have its counsel and an editor review the sealed material in order to provide and receive instructions; and (c) to set aside the orders, or alternatively to vary them so that they limited public access to the motion material as minimally as possible. Before the motions were heard, the plaintiffs and defendants entered into a Confidential Settlement Agreement. A-B and B withdrew their motion, and the motion judge dismissed the newspaper's motion. The newspaper appealed.

Held, the appeal should be allowed.

Per Juriansz J.A. (dissenting in part): The motion judge erred in refusing to grant the newspaper intervenor status. He failed to give sufficient weight to the newspaper's constitutionally guaranteed freedom of the press and to the fact that the newspaper sought standing to assert a position coincident with the public's interest that would not be raised otherwise.

The motion judge's decision to continue the protective order was a final one for the purposes of this appeal.

The motion judge erred by concluding that it had been established that continuing the protective order was necessary to protect B's right to a fair trial in criminal proceedings in the United States. The motion judge also erred by relying on the facts that the protected material had been filed on an ex parte motion and that the parties had agreed the material should remain sealed. Finally, the motion judge erred by failing to consider whether there was a portion of the sealed material that could be released. The order dismissing the newspaper's motion should be set aside and replaced with an order granting the newspaper intervenor status and setting aside the protective order.

Per Rouleau J.A. (Laskin J.A. concurring): The reasons of Juriansz J.A. with respect to the intervenor issue are agreed with.

In dealing with the protective order issue, the motion judge correctly identified the Dagenais/Mentuck test as being applicable to all discretionary orders [page722] limiting freedom of the press and recognized that B's fair trial interest might be imperiled. However, the balancing pursuant to the Dagenais/Mentuck test requires that a high threshold be met before a protective order will be granted. The court is required to balance the constitutionally entrenched freedom of expression against the right to privacy and the right to a fair trial. Because the motion judge refused to give the newspaper intervenor status for the limited purpose of challenging the protective order, his analysis and his exercise of discretion respecting the maintenance of the protective order were affected. Without the press interest being factored into the balancing, the balancing was inevitably tainted. The decision on intervenor status and the decision to continue the protective order were strongly linked, and the decision in its entirety had to be set aside. There was, therefore, no need to decide whether the portion of the decision relating to the protective order, were it to stand alone, was final or interlocutory for the purpose of determining the appeal route. The appropriate remedy was to grant the newspaper intervenor status for the limited purpose of challenging the protective order and remit the balance of the newspaper's motion to the Superior Court for a new hearing.

APPEAL from an order of C.L. Campbell J. (2006), 2006 38862 (ON SC), 83 O.R. (3d) 258, [2006] O.J. No. 4620 (S.C.J.) dismissing a motion for intervenor status and to set aside protective order.

Cases referred to Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104, 120 D.L.R. (4th) 12, 175 N.R. 1, J.E. 95-30, 76 O.A.C. 81, 94 C.C.C. (3d) 289, 34 C.R. (4th) 269, 25 C.R.R. (2d) 1, 51 A.C.W.S. (3d) 1045, 25 W.C.B. (2d) 304; R. v. Mentuck, [2001] 3 S.C.R. 442, [2001] S.C.J. No. 73, 2001 SCC 76, 205 D.L.R. (4th) 512, 277 N.R. 160, [2002] 2 W.W.R. 409, J.E. 2001-2142, 163 Man. R. (2d) 1, 158 C.C.C. (3d) 449, 47 C.R. (5th) 63, 51 W.C.B. (2d) 349, consd Other cases referred to Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675, [1932] O.J. No. 380, [1932] 4 D.L.R. 580 (C.A.); Hollinger Inc. v. The Ravelston Corp. (2006), 2006 38862 (ON SC), 83 O.R. (3d) 258, [2006] O.J. No. 4620, 41 C.P.C. (6th) 344, 153 A.C.W.S. (3d) 319 (S.C.J.); Howland v. Dominion Bank, [1892] O.J. No. 290, 15 P.R. 56 (C.A.); Ivandaeva Total Image Salon Inc. v. Hlembizky (2003), 2003 43168 (ON CA), 63 O.R. (3d) 769, [2003] O.J. No. 949, 225 D.L.R. (4th) 322, 169 O.A.C. 354, 29 C.P.C. (5th) 68, 121 A.C.W.S. (3d) 446 (C.A.); John E. Dodge Holdings Ltd. v. 805062 Ltd. (2003), 2003 52131 (ON CA), 63 O.R. (3d) 304, [2003] O.J. No. 350, 223 D.L.R. (4th) 541, 186 O.A.C. 252, 34 B.L.R. (3d) 12, 10 R.P.R. (4th) 98, 120 A.C.W.S. (3d) 692 (C.A.) [Leave to appeal to S.C.C. refused [2003] S.C.C.A. No. 145]; L.L.A. v. A.B., 1995 52 (SCC), [1995] 4 S.C.R. 536, [1995] S.C.J. No. 102, 130 D.L.R. (4th) 422, 190 N.R. 329, J.E. 96-65, 103 C.C.C. (3d) 92, 44 C.R. (4th) 91, 33 C.R.R. (2d) 87, 29 W.C.B. (2d) 154; Named Person v. Vancouver Sun, [2007] S.C.J. No. 43, 2007 SCC 43, 285 D.L.R. (4th) 193, 368 N.R. 112, [2008] 1 W.W.R. 223, J.E. 2007-1909, 247 B.C.A.C. 1, 73 B.C.L.R. (4th) 34, 224 C.C.C. (3d) 1, 51 C.R. (6th) 262, 75 W.C.B. (2d) 103, 162 C.R.R. (2d) 104, EYB 2007-124673; National Bank of Canada v. Melnitzer (1991), 1991 7271 (ON SC), 5 O.R. (3d) 234, [1991] O.J. No. 1604, 84 D.L.R. (4th) 315, 2 C.P.C. (3d) 106, 29 A.C.W.S. (3d) 164 (Gen. Div.); P.S. v. D.C., [1987] O.J. No. 2359, 22 C.P.C. (2d) 225 (H.C.J.); R. v. Henry, [2005] 3 S.C.R. 609, [2005] S.C.J. No. 76, 2005 SCC 76, 260 D.L.R. (4th) 411, 342 N.R. 259, [2006] 4 W.W.R. 605, J.E. 2006-62, 376 A.R. 1, 219 B.C.A.C. 1, 49 B.C.L.R. (4th) 1, 202 C.C.C. (3d) 449, 33 C.R. (6th) 215, 136 C.R.R. (2d) 121; R. v. Primeau, 1995 143 (SCC), [1995] 2 S.C.R. 60, [1995] S.C.J. No. 33, 180 N.R. 101, J.E. 95-846, 97 C.C.C. (3d) 1, 38 C.R. (4th) 189, 27 C.R.R. (2d) 242, 26 W.C.B. (2d) 538; Ravelston Corp. (Re) (2007), 2007 3887 (ON SC), 84 O.R. (3d) 611, [2007] O.J. No. 536, 29 C.B.R. (5th) 34, 152 C.R.R. (2d) 91, 155 A.C.W.S. (3d) 322 (S.C.J.); Stelco Inc. (Re), 2006 1774 (ON SC), [2006] O.J. No. 277, 17 C.B.R. (5th) 95 (S.C.J.); Toronto Star Newspapers Ltd. v. Ontario, [2005] 2 S.C.R. 188, [2005] S.C.J. No. 41, 2005 SCC 41, 253 D.L.R. (4th) 577, 335 N.R. 201, J.E. 2005-1234, 200 O.A.C. 348, 197 C.C.C. (3d) 1, 29 C.R. (6th) 251, 132 C.R.R. (2d) 178, 65 W.C.B. (2d) 621; [page723] Vancouver Sun (Re), [2004] 2 S.C.R. 332, [2004] S.C.J. No. 41, 2004 SCC 43, 240 D.L.R. (4th) 147, 322 N.R. 161, [2005] 2 W.W.R. 671, 199 B.C.A.C. 1, 33 B.C.L.R. (4th) 261, 184 C.C.C. (3d) 515, 21 C.R. (6th) 142, 120 C.R.R. (2d) 203, 61 W.C.B. (2d) 216 Statutes referred to Canada Evidence Act, R.S.C. 1985, c. C-5, s. 5(2) [as am.] Canadian Charter of Rights and Freedoms, ss. 2(b), 13 Courts of Justice Act, R.S.O. 1990, c. C.43, s. 6(2) [as am.] Criminal Code, R.S.C. 1985, c. C-46 Supreme Court Act, R.S.C. 1985, c. S-26, s. 40 [as am.] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 1.03 [as am.], 13, 13.01, 30.1 [as am.], 30.1.01(1) [as am.], (5) [as am.], (6) [as am.], 37.14 [as am.] Authorities referred to Crane, Brian A., and Henry S. Brown, Supreme Court of Canada Practice (Scarborough: Thomson Professional Publishing Canada, 2007) Sharpe, Robert J., Injunctions and Specific Performance, 3rd ed. (Aurora, Ont.: Canada Law Book, 2000) Sopinka, J., and M. Gelowitz, The Conduct of an Appeal, 2nd ed. (Toronto: Butterworths, 2000) Watson, Garry D., and Craig Perkins, Holmested and Watson: Ontario Civil Procedure (Toronto: Carswell, 1984)

Peter Jacobsen and Adrienne Lee, for appellant. Davit D. Akman, for respondents Hollinger Inc. et al. David Roebuck, Edward L. Greenspan, Q.C., and Jasmine Akbarali, for respondents Conrad Black and Barbara Amiel-Black.

[1] JURIANSZ J.A. (dissenting in part): -- The plaintiffs in this action obtained a Mareva injunction against Conrad Black and Barbara Amiel-Black. The motion judge made a protective order sealing the motion material making it unavailable to the public. Bell Globemedia Publishing Inc. (the "Globe") moved to intervene to set aside the protective order. The motion judge dismissed the Globe's motion. The Globe appeals.

[2] Circumstances have changed since the motion judge's decision, and the Globe could bring a new motion to set aside the protective order. Events may have largely eclipsed the dispute, but the appeal is not moot. The Globe has proceeded with the appeal rather than bringing a new motion, it explains, to ensure the motion judge's decision, which it regards as wrong, does not influence the jurisprudence in this area. [page724]

[3] I would find that the motion judge erred in refusing to grant the Globe intervenor status and in deciding to continue the protective order. I would grant the appeal, set aside the dismissal of the Globe's motion, and replace it with an order granting the Globe intervenor status and setting aside the protective order. Facts

[4] The motion judge was case managing the action of the plaintiffs (referred to collectively as "Hollinger") against the Blacks and others. At the time, Mr. Black was facing a number of highly publicized criminal charges in the U.S., and his trial was scheduled to begin in March 2007.

[5] On August 18, 2006, the motion judge made two orders on motions brought by Hollinger without notice to the Blacks. In the first order, the motion judge granted a Mareva injunction against the Blacks freezing their assets worldwide. Hollinger was required to give notice to the Blacks and then apply to have the order confirmed within ten days. The order contained a term that "the Motion Record, the Affidavits filed and this Order shall remain sealed until the return of this motion [after service of the order on the Blacks]". The parties refer to this term as the "sealing order". In the second order, the motion judge ordered "that the Motion material is hereby subject to a protective Order, subject to further Order of this court". The parties refer to this as the "protective order".

[6] When the Blacks received notice of the Mareva order, they brought a motion to set it aside. Their motion and Hollinger's motion to continue the Mareva order were both scheduled to be heard on September 29, 2006. The motion judge made an interim order on August 29, 2006 continuing both the Mareva order and the protective order to September 29, 2006.

[7] On August 30, 2006, the Globe learned about the August 18, 2006 orders. It filed a motion seeking: (1) intervenor status for the purpose of challenging the sealing and protective orders; (2) permission to have its counsel and deputy editor, upon giving appropriate confidentiality undertakings to the court, review the sealed material in order to provide and receive instructions and to permit counsel to make informed submissions on its motion; (3) to set aside the sealing and protective orders, and in the alternative, to vary the sealing orders so that they limited public access to the motion material to the minimal extent possible. [page725] The Globe's motion, originally returnable September 26, was also adjourned to September 29, 2006 to be heard along with the motions of Hollinger and the Blacks.

[8] When all three motions came before the court, counsel for Hollinger and the Blacks advised that they had entered into what they called a Confidential Settlement Agreement. At their request, the court made an order on consent restraining the Blacks from dealing with their assets "except as provided by the Confidential Settlement Agreement". Evidently, the agreement itself was not filed with the court. The Blacks withdrew their motion.

[9] When the consent order was made, the sealing order lapsed, but the protective order continued. The sealing order was part of the original Mareva order that had provided that it would remain in effect only "until the return of this motion", so the sealing order expired with the return of the motion. The protective order, however, had been issued separately and it remained in effect "subject to further order of this Court".

[10] After making the consent order, the motion judge entertained the Globe's motion and dismissed it.

[11] The appeal as framed by the parties involves three decisions of the motion judge: (1) denying the Globe intervenor status; (2) refusing the Globe the opportunity to view the sealed material for the purposes of argument; and (3) maintaining the protective order in place, in whole or in part.

[12] The Globe argues that the motion judge arrived at the wrong conclusion on all three questions. The respondents argue that the motion judge's orders to continue the protective order and to refuse to allow the Globe to view the protected material were interlocutory and should have been appealed to the Divisional Court. The respondents concede that the motion judge's denial of intervenor status to the Globe was a final order, but submit that it was a discretionary decision subject to a high level of deference with which this court ought not to interfere. The Motion Judge's Reasons

[13] The motion judge indicated that after he made the consent order he still had two matters before him. There was the Globe's motion and, in addition, Hollinger and the Blacks sought an order that the protective order continue and be [page726] expanded to include the material filed in the further motions: para. 8. He indicated that this request was heard along with the Globe's motion that the protective order be set aside. He characterized the issue raised by these two motions at para. 12 as "the exercise of the court's discretion to continue the protective Order".

[14] The motion judge then addressed the Globe's request for intervenor status. He noted that the Globe did not seek to participate in Hollinger's action against Mr. Black generally, but merely wished to challenge the protective order. He indicated that was permitted by the operation of rules 13.01 and 1.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Rule 13.01 contemplates intervenor status for a person who is not a party to the "proceeding", and the definition of "proceeding" in rule 1.03 has been interpreted to include a motion within a proceeding. The motion judge's conclusion following this observation, however, is not entirely clear.

[15] The motion judge said at para. 21 that "limited intervenor status should be granted" for consideration of the matters before him. This statement could be taken to suggest he granted the Globe intervenor status, not in the action, but only for the purpose of its motion, and then went on to dismiss that motion.

[16] Nonetheless, the parties framed the appeal on the basis that the motion judge refused the Globe's request for intervenor status. Perceiving ambiguity in the motion judge's reasons, the respondents submitted that it was "appropriate to proceed on this appeal as though the appellant were denied intervenor status by the motions judge". The view taken by the parties is supported by the motion judge's clear statement at para. 19, "Upon reflection, I am not satisfied that [the Globe] has the necessary connection to be accorded intervenor status to challenge the sealing order." He also said at paras. 18 and 19 that "[l]eave was given to counsel for [the Globe] to make submissions on the issue of the sealing order as if it were granted intervenor status for that purpose" and "it is appropriate to deal with the matter on its merits and assume for the purpose of disposing of [the Globe's] substantive request that intervenor status is appropriate" (emphasis added). Moreover, his formal order referred to the Globe as the "proposed intervenor" and dismissed the entire Globe motion including the portion that requested intervenor status to challenge the protective order.

[17] I have dealt with the appeal as framed by the parties.

[18] It is possible to perceive another ambiguity in the judge's reasons. This is due to the statements that bookend his main [page727] analysis. At the beginning of that analysis, he remarked [at para. 21] that the determination of the Globe's intervenor request was "dependent on a consideration of the factors referred to below" (emphasis added). However, he concluded [at para. 82] the analysis with the statement, "For the above reasons, I have concluded that it is not appropriate at this stage to set aside the protective Order of August 18, 2006" (emphasis added).

[19] The motion judge's preface that the Globe's motion for intervenor status was "dependent on a consideration of the factors referred to below" could be taken to indicate that his refusal to grant the Globe intervenor status was the only substantive decision he made. On the other hand, his statement that he had decided not to set aside the protective order "[f] or the above reasons" indicates that he turned his mind to the merits of the Globe's motion and decided that the protective order should continue.

[20] I think the parties correctly framed the appeal on the basis that the motion judge made a substantive decision to maintain the protective order in place. He indicated [at para. 12] at the outset that the issue before him was "the exercise of the court's discretion to continue the protective Order". He maintained a consistent focus on that issue throughout his analysis. Very little of his analysis is relevant to the question of the Globe's intervenor status and all of it bears directly on the merits of continuing the protective order. As well, the motion judge expressly stated that he had concluded not to set aside the protective order and his formal order dismissed the Globe's motion to set it aside. Finally, it must be remembered that Hollinger and the Blacks had asked the motion judge for an order to continue the protective order in force. Hollinger and the Blacks' request reflects the fact the protective order had originally been made in combination with an ex parte interim Mareva order that required confirmation within ten days. The interim order the motion judge made on August 29 continued the protective order to September 29 when the Globe's motion was heard.

[21] Again, I have proceeded with the appeal as framed by the parties on the basis that the motion judge made a substantive decision to continue the protective order. I turn to his reasons for doing so.

[22] The motion judge offered three principle reasons for deciding to continue the protective order, each under a separate heading: that the material had been filed ex parte or without notice, that Hollinger and the Blacks, as part of their settlement, had agreed the material should remain sealed, and that there was potential prejudice to Mr. Black in his criminal trial [page728] by self-incrimination or otherwise. I summarize his discussion of each of these reasons.

[23] The motion judge stressed the fact that the protective order was made as part of the ex parte Mareva order. Mareva orders, he noted, are generally made without notice. Persons against whom they are made do not have the opportunity to challenge the material initially filed until the motion returns before the court to be confirmed. In this case, he observed, the Blacks did not challenge the material that Hollinger had initially filed because the dispute between Hollinger and the Blacks regarding the Mareva injunction was withdrawn from the court by their settlement. The motion judge concluded at para. 30, "it would be inappropriate, without consent of the parties to allow release of the material that has not been challenged in open court".

[24] The motion judge then turned to the fact that Hollinger and Mr. Black, as part of their settlement resolving the Mareva injunction, had agreed that the protective order should continue. He stated at para. 33 that the presumption that the court file should be open to the public continues to apply even though the litigants have settled the matter "unless it can be demonstrated that there is a particular privacy interest in the filed material or that it is in the interest of achieving the settlement that some or all of the file not be available to the public". As no evidence was filed, it seems the motion judge considered it implicit that Hollinger and the Blacks' agreement that the materials should remain unavailable to the public was important to their ability to reach a settlement.

[25] While the ex parte nature of the proceeding and the settlement were factors considered by the judge, the main reason he decided to continue the protective order in force was to ensure the fairness of Mr. Black's trial in the United States. He accepted Mr. Black's submissions that material that is part of the public record in a Canadian court file "may be used against him in the criminal prosecution in the United States without the ability to object to its use, as would be the case in a criminal case in Canada": para. 39.

[26] In evaluating this factor, the motion judge reiterated at para. 41 that the test for granting a sealing order is "whether the social value raised by the plaintiffs is one of superordinate importance to the rights of the public to access open court". He considered the two competing interests in this case to be "the interests of the public, represented by [the Globe], in open court records, and the interest of Mr. Black against testimonial compulsion of self-incrimination": para. 42. At para. 49 he repeated [page729] that the individual interest competing with the press' freedom of expression was the right of Mr. Black under s. 13 of the Canadian Charter of Rights and Freedoms not to self-incriminate.

[27] The motion judge stated that the party seeking a sealing order bore the onus of rebutting the presumption of openness and adopted the two-part Dagenais/Mentuck test developed by the Supreme Court of Canada in Dagenais v. Canadian Broadcasting Corp., 1994 39 (SCC), [1994] 3 S.C.R. 835, [1994] S.C.J. No. 104 and R. v. Mentuck, 2001 SCC 76, [2001] 3 S.C.R. 442, [2001] S.C.J. No. 73 in the context of publication bans [Dagenais, at p. 878 S.C.R.]: (a) Such a ban is necessary in order to prevent a real and substantial risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) The salutary effects of the publication ban outweigh the deleterious effects of the free expression of those affected by the ban. ([Emphasis in original])

[28] The motion judge noted that the Globe recognized that public access to the sealed material might pose a "real and substantial risk" to the fairness of Mr. Black's criminal trial. However, the Globe went on to argue, as the motion judge explained, that s. 2(b) of the Charter "mandates that the court impose on a party seeking to obtain or maintain a sealing order an onus to establish that the material sealed or filed would be of an incriminatory nature and that the court review with detail and care that determination": para. 13. The Globe submitted that the determination whether the fairness of Mr. Black's trial was in fact at risk would best be made on the basis of informed submissions and so its counsel should be given access to the material for the purposes of argument.

[29] The judge listed [at para. 57] six reasons why he decided not to proceed as the Globe requested: (1) The subject of the ex parte Order, once served, was dealt with in open court, namely, the fact that there was a settlement reached by the parties themselves. (2) The fact of the settlement and the continuation of the original Order was made in a public Order. (3) There was no court proceeding at which both the Blacks and [Hollinger] Inc. were present and heard, which was not dealt with in public. (4) The withdrawn motion of the Blacks attacked a court Order, which they said should not have been made without due notice to them and [without] the opportunity to make submissions on both the material and propriety of the Order. [page730] (5) The continuance of the Sealing Order is time-limited and does not represent an adjudication of any issue in the action that could be said to be of public importance. (6) Any affected party, and this might include [the Globe], can apply for further direction at an appropriate point.

[30] The motion judge then emphasized at para. 58 that he was exercising his discretion in favour of a protective order to ensure that "any material that may be said to be prejudicial to Mr. Black's defence to U.S. criminal proceedings cannot be used against him in those proceedings".

[31] The motion judge explained why he declined to embark on a document-by-document review of the material in order to determine if a portion of the material could be disclosed in order to minimize the infringement of the Globe's freedom of the press. The motion judge stated the court was aware of the criminal charges against Mr. Black "only in the most general way", and neither he nor any other judge of the court "would be in a position to determine what of the material relied on by [Hollinger] Inc. for its ex parte Order might be said to be relevant or prejudicial to the defence of those charges": paras. 60-61. He also observed that "settlements are to be encouraged" and noted the continued protection order arose from the settlement between Hollinger and Mr. Black. Furthermore, a document-by-document review would be time-consuming, costly to both Hollinger and the Blacks, and would serve no reasonable public purpose "at least at this time": para. 61 ([Emphasis in original]). The motion judge stated at para. 68 that if he were "to make a determination on what might or might not be used by a U.S. prosecutor, it would not protect Mr. Black's s. 13 rights under the Charter and might well intrude on judicial comity". The motion judge added at para. 79 that neither Hollinger nor the Blacks "want to or should in my view be put to the expensive process of review of documents that at this stage have nothing to do with the ultimate resolution of the claims in the action", especially since the order was "an interlocutory one for a limited time period". He said that "The temporarily [sic] sealing of material that may prejudice Mr. Black in the defence of charges against him by disclosure of financial records or other activities that may be said to be related to such charges does outweigh at this time the deleterious effects to freedom of expression": para. 66.

[32] The motion judge then concluded that it was not appropriate to set aside the protective order "at this stage" and took pains to point out at para. 82 that "[s]hould circumstances warrant, [page731] before the hearing of the criminal trial of Mr. Black, the motion may be reviewed and in any event, may be reviewed following that trial". Issues and Positions of the Parties

[33] The Globe submits that the motion judge erred in refusing it intervenor status, in refusing to give it access to the sealed material for the purpose of making argument, and in not setting aside the protective order or at least ensuring it had the minimal scope possible. It submits that all three are final decisions from which an appeal lies to this court.

[34] The respondents submit that the motion judge's decision refusing to allow the Globe access to the sealed material for the purpose of making argument and his decision to continue the protective order are interlocutory and that the parts of the appeal relating to these decisions should be quashed. The respondents concede the decision refusing the Globe intervenor status was a final one, but submit it was discretionary and deserving of deference. The denial of intervenor status was appropriate, they say, because there was no public interest in an ex parte Mareva proceeding and, as a result, the appellant did not have any interest in the proceeding. If the decision to maintain the protective order in force was reviewable in this court, the respondents submit it was also discretionary. They say that discretion was properly exercised because the sealed material was filed on an ex parte motion and was untested by the adversarial process and there was no public interest in the material.

[35] As stated earlier, I would find that the motion judge erred in refusing to grant the Globe intervenor status. I would find the decision to continue the protective order was a final one and that the motion judge's analysis in reaching it was flawed. I consider the motion judge's decision not to allow counsel to view the sealed material in order to make informed argument a procedural decision that was interlocutory. That interlocutory decision is not appealable to this court, but courts faced with such questions may well find the Supreme Court's comments at paras. 60-61 of Named Person v. Vancouver Sun, [2007] S.C.J. No. 43, 2007 SCC 43 to be helpful. I begin my analysis with the decision that the respondents concede is final and appealable. Denial of Intervenor Status

[36] While the decision to recognize an intervenor is largely discretionary, in my view the motion judge erred in principle in [page732] refusing to grant the Globe intervenor status. He failed to give sufficient weight to the Globe's constitutionally guaranteed freedom of the press and to the fact the Globe sought standing to assert a position coincident with the public's interest that would not be raised otherwise.

[37] Public access to the court system promotes confidence in the judicial system and enables oversight of the functioning of the courts. In this case, the parties to the action asked the motion judge for an order that the protective order continue. The public had an interest in whether it was continued or set aside, but that interest was not represented. Except for the Globe, there was no one, first to raise the issue whether the protective order should be set aside and then to advocate the position that it unnecessarily violated the open court principle.

[38] In Dagenais, Lamer C.J.C. set out general guidelines for the Crown, the accused, the media and the courts in criminal cases where a party has applied for a publication ban pending the completion of trial. He addressed the role of the court at p. 872 S.C.R.:

Upon a motion for a ban under the common law rule, the court should give standing to the media who seek standing (according to the rules of criminal procedure and the established common law principles) and follow the general guidelines for practice set out in . . . these reasons.

[39] This edict rests comfortably with the Rules of Civil Procedure. Rule 13 allows a person who is not a party to move for leave to intervene where he or she "may be adversely affected" by a judgment. The appellant brought its motion relying on the guarantee of freedom of expression including freedom of the press in s. 2(b) of the Charter. I have no doubt the Globe's constitutional rights were "adversely affected" by the protective order.

[40] Given these factors and their importance, the motion judge erred by refusing the Globe intervenor status for the purpose of dealing with the question whether the protective order should be continued or set aside.

[41] It may be suggested that the error was one of form rather than substance since the motion judge did allow the Globe to make submissions. I do not accept the suggestion. In my view, the motion judge's perception that the Globe lacked sufficient connection to challenge the sealing order would have undermined the force of the Globe's position. The procedure he adopted and the conclusions he reached might have been different had he appreciated the Globe's status. It might have been less likely that he would have lost sight of the fact the onus was on the respondents. The Globe, as an intervenor, would have had a stronger claim to [page733] review the material for the limited purpose of making informed argument. If the rights of an intervening party were at stake, the judge might have been persuaded to undertake a review of the material. If the judge had undertaken a review, he may have concluded that some or all of it could be released.

[42] I would conclude that the motion judge's refusal to accord intervenor status to the Globe was not merely an error of form, and must be set aside.

[43] I pause to observe that the Globe might have proceeded differently. Instead of moving for intervenor status under Rule 13 of the Rules of Civil Procedure, the Globe might have moved to set aside the protective order under rule 37.14 as a "person who ... is affected by an order obtained on motion without notice". Newspapers have relied successfully on rule 37.14 to challenge sealing orders: see e.g., P.S. v. D.C., [1987] O.J. No. 2359, 22 C.P.C. (2d) 225 (H.C.J.) and National Bank of Canada v. Melnitzer (1991), 1991 7271 (ON SC), 5 O.R. (3d) 234, [1991] O.J. No. 1604 (Gen. Div.). In a decision of this court, Ivandaeva Total Image Salon Inc. v. Hlembizky (2002), 2003 43168 (ON CA), 63 O.R. (3d) 769, [2003] O.J. No. 949 (C.A.), Borins J.A. exhaustively reviewed the application of rule 37.14(1). He noted, as one example of cases in which successful motions under rule 37.14(1) had been brought, the "broad group of cases, usually arising from the sealing of a court file, in which the media has complained that its right to freedom of expression as guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms has been compromised and in which the principle of open and accessible court proceedings has been invoked": para. 27. Later in the judgment at para. 38 he wrote that "it is apparent from the media cases that the courts have read 'an order obtained without notice' to mean without notice to the newspaper, or other media non-party, seeking to set aside a sealing order".

[44] I now turn to a consideration of the motion judge's decision to continue the protective order. Decision to Continue the Protective Order

Interlocutory or final?

[45] The first question is whether the motion judge's decision to continue the protective order was interlocutory or final.

[46] The protective order is interlocutory, the respondents say, because the reasons of the motion judge make abundantly clear that he decided to maintain it in force until the U.S. proceedings finished, after which it could be reviewed. In fact, the motion judge recorded the concession of counsel for Mr. Black that the [page734] considerations and outcome might be different once the U.S. proceedings were completed. As noted earlier, he stated [at para. 82] that "[s]hould circumstances warrant, before the hearing of the criminal trial of Mr. Black, the motion may be reviewed and in any event, may be reviewed following that trial".

[47] On the other hand, the Globe argues that the protective order is a final order viewed from the Globe's perspective as a third party uninvolved in the action whose motion was entirely dismissed. The Globe says its right to have access to the material at the time of the motion has been finally determined. Moreover, the Globe points out that the order does not, in fact, expire automatically once Mr. Black's U.S. criminal proceedings are completed. Rather, the order remains in effect indefinitely. The Globe does recognize the order is "subject to further Order of this court", but submits this phrase is superfluous as the Rules of Civil Procedure would permit it to bring a motion to set aside or vary the order when new facts arose in any event.

Procedural conundrum if interlocutory

[48] Before beginning the analysis of these competing positions, it is worth noting the procedural conundrum the respondents say that the appellant faces because the motion judge's decision to maintain the protective order is interlocutory. If the decision is interlocutory, the Globe's appeal would properly lie to the Divisional Court, the respondents say. However, the Globe, having been refused intervenor status, would lack the status to file such an appeal. The Globe's only option, they say, would be first to appeal the refusal of intervenor status to this court, and after successfully having it set aside, then to pursue an appeal of the decision to maintain the protective order in the Divisional Court.

[49] Section 6(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43, would not provide a solution to this conundrum, the respondents say. Section 6(2) permits this court to hear an appeal that lies to the Divisional Court "if an appeal in the same proceeding lies to and is taken to the Court of Appeal". The respondents say that s. 6(2) has no application unless leave has first been obtained from the Divisional Court: John E. Dodge Holdings Ltd. v. 805062 Ontario Ltd. (2003), 2003 52131 (ON CA), 63 O.R. (3d) 304, [2003] O.J. No. 350 (C.A.), at para. 48. The respondents say that the Globe must first reverse the decision refusing it intervenor status before it would have the status to seek such leave from the Divisional Court.

[50] If this reasoning is correct, the Globe must sequentially pursue different procedures in different courts in order to appeal the motion judge's dismissal of the motion that it brought before [page735] him. If the Globe were unsuccessful in its appeal of the decision refusing it intervenor status, it would not be able to appeal the decision to maintain the protective order in force.

[51] The appellant's conundrum, however awkward, is not relevant to determining whether the protective order is final. The order is final only if it finally determines the rights of the parties. The classic statement of the difference between an interlocutory and final order is found in Hendrickson v. Kallio, 1932 123 (ON CA), [1932] O.R. 675, [1932] O.J. No. 380 (C.A.). Justice Middleton explained at p. 678 O.R. that an interlocutory order "does not determine the real matter in dispute between the parties -- the very subject matter of the litigation, but only some matter collateral. It may be final in the sense that it determines the very question raised by the application, but it is interlocutory if the merits of the case remain to be determined." On the other hand, he said [at p. 680 O.R.] a final order "determines the merits of the action and the real rights of the parties".

Application of the test to the Globe as a third party

[52] The principle becomes difficult to apply when third parties, unconcerned with the merits of an action, become involved in the proceedings for a limited purpose. The Globe, in arguing the protective order was final, emphasized it was a third party uninvolved in the action. I agree this is the key to the determination of the issue.

[53] The Globe points out that the courts have applied the Hendrickson test to non-parties as if they were parties for the limited purpose of the order affecting them. It relies upon John Sopinka and Mark A. Gelowitz, The Conduct of an Appeal, 2nd ed. (Toronto: Butterworths, 2000), at 20 where the authors state:

The approach the courts have taken to orders affecting non- parties has caused some commentators to suggest that in such circumstances the courts have "expanded" or "abandoned" the Hendrickson test. It is, perhaps, more accurate to say that the courts have applied Hendrickson to non-parties as if they were parties for the limited purpose of the order affecting them. Garry D. Watson and Craig Perkins, Holmested and Watson: Ontario Civil Procedure (Toronto: Carswell, 1984), at R. 62 7 make the same point. Whether and how a third party is affected influences the characterization of an order as interlocutory or final. Therefore, whether the motion judge's order maintaining the protective order is interlocutory or final depends on its effect on the rights of the Globe.

[54] Certainly, the Mareva injunction against the Blacks, issued ex parte and then continued on consent, is interlocutory. [page736] The Globe, however, has no interest in the merits of Hollinger's action or of its motion for an interlocutory Mareva injunction. The Globe's involvement is limited to its motion to set aside the sealing order. It is in the context of that motion that its rights must be determined. It is necessary to consider what was at stake for the Globe in the motion.

[55] The Globe in its motion did not seek a special ruling in its favour. Ordinarily, the open court principle governs, and it would be unnecessary for the Globe to bring a motion seeking the court's permission to have access to a court file. The Globe wanted the normal state of affairs to apply and brought a motion to set aside the special order that had been made in favour of Mr. Black. The issue the Globe raised was whether its routine right of access to a court file, based on its freedom of the press, had to yield to other interests. In dismissing its motion, the motion judge decided that the Globe's freedom of the press had to yield to Mr. Black's individual interests in the circumstances. As I see it, the protective order finally determined the Globe could not exercise its routine right to have access to the court file.

[56] I attach no importance to the fact that the literal wording of the order makes it apply indefinitely. The reasons of the motion judge make evident that he regarded the order as temporary. He fully expected the order would be set aside at someone's initiative after the U.S. proceedings ended. Even if the protective order, despite its wording, is regarded as sealing the court file temporarily, I still would consider it a final order.

[57] Nor do I attach importance to the fact the motion judge seemed to consider the Globe could successfully assert its right of access to the file at a later time. The fact that an order has temporary application does not necessarily mean that it is interlocutory. The touchstone is whether the order determines the real matter in dispute between the parties. The right claimed and in issue in a proceeding may be the ability to do something at a particular time. For example, a separated parent may bring a freestanding application to dispense with the other parent's required consent to take a child out of the country during the summer. In my view, a dismissal of such an application determines it finally, even though the parent may bring another application the following summer, or even later in the same summer if circumstances change.

[58] In the context of the Globe's motion, the potential right to have access later is not the same as the actual right to have access now. The decision to maintain the protective order finally determined that the Globe may not exercise its constitutional right to freedom of the press in the circumstances that were [page737] before the motion judge. A motion brought later will not revisit that question, but will decide whether the Globe may exercise its right of access in other circumstances.

[59] For these reasons I would conclude that the motion judge's decision to continue the protective order is final for the purpose of this appeal.

Additional commentary on media bans in criminal cases

[60] This is the first time this court has considered whether civil sealing orders are interlocutory or final. It is an important question and this panel does not unanimously embrace my conclusion that the continued protective order is a final one. This prompts me to discuss the issue further. I emphasize I have not relied upon the criminal law, which was not argued before us, to reach the conclusion that the continued protective order is final. However, it is worth examining the criminal law because most of the jurisprudence on media bans has developed in the criminal context, and as a result, the criminal jurisprudence concerning such bans is more mature.

[61] In criminal cases, interlocutory publication bans are treated as final orders with respect to media third parties. I explain this more fully.

[62] It is interesting that Dagenais, the leading case on the procedure to be followed in criminal cases, started as a civil application. Dagenais concerned an application for an injunction prohibiting the C.B.C. from broadcasting a program that could jeopardize the fair trial of four accused charged with abusing boys in their care. The accused had brought the application for an interlocutory injunction under the Ontario Courts of Justice Act before a judge of the Ontario Court (General Division). She prohibited the broadcast of the program and ordered that the court file be sealed, both until the completion of the criminal trials.

[63] The first issue before the Supreme Court was the proper avenue for a third party challenge to a publication ban sought by the Crown or accused in a criminal proceeding. Chief Justice Lamer rejected civil jurisdiction under the provincial Judicature Acts (such as the Ontario Courts of Justice Act), reasoning that a media challenge to publication bans in response to a request made by a party to a criminal case is a criminal, not civil, matter. Chief Justice Lamer set out general procedural guidelines for the Crown, the accused, the media and the courts.

[64] It is unnecessary to review these guidelines in any detail. What is important is that different procedures and different appeal routes apply to the media and to the parties. An accused [page738] or the Crown in a trial before a provincial superior court should make the application for a publication ban to the trial judge, or if the trial judge has not yet been named, to a judge of the superior court. There is no immediate right of appeal. To seek or challenge a ban on appeal, both the Crown and the accused must follow the regular avenues of appeal available to them at the end of trial through the Criminal Code, R.S.C. 1985, c. C-46.

[65] By contrast, media who have unsuccessfully opposed a motion for a ban brought in a superior court should apply for leave to appeal to the Supreme Court under s. 40 of the Supreme Court Act, R.S.C. 1985, c. S-26 without waiting until the end of the trial. This appeal is available because "[a] publication ban order can be seen as a final or other judgment of the highest court of final resort in a province or a judge thereof in which judgment can be had in the particular case": Dagenais at p. 861 S.C.R.

[66] The policy choice and implications of ordaining different avenues of appeal for the parties and for the media were discussed in detail by L'Heureux-Dubé J. in dissent. In explaining why she would not find that the media had a right of appeal under s. 40 of the Supreme Court Act, she set out the issue starkly, at p. 904 S.C.R.:

[T]he impugned publication ban is clearly an interlocutory order from the point of view of the accused. However, from the point of view of the appellants, this order is, for all intents and purposes, final. . . . In fact, any court order made in a criminal context which affects a third party, including any order directed at witnesses, could likely be characterized as "final" from the point of view of the affected third party. Accordingly, the argument can be made that a third party appeal against such an order would not be precluded by the principle against interlocutory criminal appeals and could therefore proceed by virtue of s. 40(1) of the Supreme Court Act.

[67] She did not disagree that a temporary publication ban was final from the media's point of view, but took the position that the perspective of the accused should govern.

[68] The majority position in Dagenais, of course, states the law. Thus Brian A. Crane and Henry S. Brown write in Supreme Court of Canada Practice (Scarborough: Thomson Professional Publishing Canada, 2007), at 77, "the Court has jurisdiction to grant leave to appeal under section 40 directly from some interlocutory orders of Superior Court judges affecting a third party in a criminal trial".

[69] Later cases have more explicitly characterized such orders as final. Justice L'Heureux-Dubé noted, at para. 25 of L.L.A. v. A.B., 1995 52 (SCC), [1995] 4 S.C.R. 536, [1995] S.C.J. No. 102, that "the majority of this Court in Primeau and Jobin expressed the view that an interlocutory order affecting third parties is a final order and, [page739] accordingly, s. 40(1) is available to appeal an order of a superior court judge".

[70] In R. v. Primeau, 1995 143 (SCC), [1995] 2 S.C.R. 60, [1995] S.C.J. No. 33, the court explained at paras. 12-13 why such an order would be considered final:

The procedure for third parties differs [from the procedure for parties] for two reasons. First, a third party, being outside the actual proceedings, cannot apply to the trial judge for relief. Second, an order deciding an issue with respect to a third party is a final order. Such a characterization is important in order to comply with the general rule barring interlocutory appeals in criminal matters. (Emphasis added)

[71] As can be seen, the criminal law treats appeals by third parties differently, often concluding that a matter that would be interlocutory between the parties alone is final with respect to third parties. In criminal practice, a publication ban, even one in place temporarily until the completion of the trial, is a final order determining the media's rights.

[72] In my view, it would seem incongruous if media bans in place until the end of trial were considered final in criminal law but interlocutory in civil law. I repeat that I do not rely on the criminal law in reaching my conclusion that the continued protective order in this case is final. I recognize that the criminal law is an imperfect guide for civil law. Nevertheless, I believe the approach of the criminal law fortifies the conclusion that the continued protective order is a final one.

[73] That said, I turn to the next issue in the appeal: whether the motion judge used a flawed legal analysis in deciding to continue the protective order. Merits of the Decision to Continue the Protective Order

[74] In my view, the analysis the motion judge used to arrive at his decision to maintain the protective order was flawed. While the decision may have been discretionary, "Discretion must be exercised within the boundaries set by the principles of the Charter; exceeding these boundaries results in a reversible error of law" as Lamer C.J.C. pointed out at Dagenais, p. 875 S.C.R.

[75] In this case, the motion judge erred by concluding it had been established that continuing the protective order was necessary to protect Mr. Black's right to a fair trial, and by relying on the facts that the protected material had been filed on an ex parte motion, and that the parties' had agreed the material should remain sealed. I would also find that the motion judge, having reached the conclusion that he did, erred by refusing to consider whether some portion of the material should have been made [page740] available to the public. I discuss these errors in turn, after first disposing of the respondents' argument that the burden was on the Globe to establish the protective order should be set aside.

Burden of proof

[76] The respondents argue that under the rules of procedure, a party who moves to set aside or vary a pre-existing order bears the burden of proof. The respondents acknowledge that a party who seeks to deny access to a court file has the burden of establishing the necessity of a protective order, but in their view this is an initial burden. They go on to submit that the initial burden was discharged when the original protective order was issued. Thus, they say, when the matter returned before the court, the burden was on the Globe.

[77] In my view, this argument is devoid of merit for two reasons.

[78] First, Robert J. Sharpe in Injunctions and Specific Performance (Aurora, Ont.: Canada Law Book, 2000) cites a line of cases going back to Howland v. Dominion Bank, [1892] O.J. No. 290, 15 P.R. 56 (C.A.) for the proposition that a party moving against an ex parte order does not bear the onus of proof: s. 2.25, p. 2-2. In Howland, MacClellan J.A. stated at p. 63 P.R. that a judge hearing the contested motion brought by a party affected by an ex parte order deals with the matter "not as a mere appeal from the formal order, but as an original substantive application".

[79] Second, and more importantly, constitutional law provides that a party attempting to justify the infringement of a Charter guarantee bears the onus. Rules of practice cannot displace a burden that is constitutional in nature.

[80] The motion judge correctly accepted what he described in para. 11 as the "basic proposition that a party who seeks to limit freedom of expression bears the burden of justifying that limitation". Unfortunately, as I discuss, he subsequently he seems to have lost sight of this principle at certain steps of his reasoning.

Right against self-incrimination

[81] I do not find it necessary to discuss whether responding to a civil proceeding such as a motion for a Mareva injunction infringes the right against self-incrimination guaranteed by s. 13 of the Charter (see R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, [2005] S.C.J. No. 76, 202 C.C.C. (3d) 449), or the extent to which international comity weighs against finding that a U.S. trial would be unfair because the U.S. has no counterpart to s. 5(2) [of] the Canada Evidence Act, R.S.C. 1985, c. C-5 (c.f. Ravelston Corp. (Re) (2007), 2007 3887 (ON SC), 84 O.R. (3d) 611, [2007] O.J. No. 536 (S.C.J.)). [page741]

[82] The essential point is that once the motion judge made the consent order, Mr. Black could no longer have any interest "against testimonial compulsion of self-incrimination", if, indeed, any such compulsion existed before. Mr. Black no longer had any reason to file material in response to Hollinger's motion. This leads to me to conclude that the motion judge erred by identifying the two competing interests to be balanced as "those of the press in freedom of expression (s. 2(b) of the Charter) and those of Mr. Black (s. 13, the right not to self- incriminate)" [at para. 49].

[83] Once the consent order was made, Mr. Black's only concern could be that the material already filed by Hollinger might be prejudicial to him in the U.S. criminal proceedings. Here, the different American approach to the right not to incriminate oneself is irrelevant. Yet, as his reasons make clear, the motion judge attached great weight to Mr. Black's right not to self-incriminate. This was an error.

[84] Despite the emphasis the motion judge placed on Mr. Black's right against self-incrimination, he also considered more generally the potential prejudicial effect of the material filed by Hollinger. At one point he said [at para. 58] the protective order should be continued "to ensure, to the extent possible, that any material that may be said to be prejudicial to Mr. Black's defence to U.S. criminal proceedings cannot be used against him in those proceedings". The fairness of Mr. Black's trial was potentially a value worthy of protection that could conceivably outweigh the open court principle in a particular case. It was, however, necessary to apply the Dagenais/Mentuck test and, in my view, the motion judge failed to do so properly.

[85] The first step was to determine whether the identified risk was real and whether the protective order was necessary. The word "necessary" was emphasized by Lamer C.J.C. in his articulation of the test. Apart from the right not to self- incriminate, the motion judge did not indicate why continuing the sealing order was "necessary" to prevent Mr. Black's U.S. trial from being unfair. He did not satisfactorily explain why that trial would be rendered unfair if the material available to the public in Canada fell into the hands of the U.S. prosecutors, and in my view, the record before him could not support such a conclusion.

[86] The motion judge did allude to the deemed undertaking rule. He stated [at para. 37], "In Canada, material produced in a civil action is generally subject to the Deemed Undertaking Rule, being rule 30.1 of the Rules of Civil Procedure", which limits its use "to purposes only connected with the proceeding in which the evidence was obtained". He did not indicate that rule 30.1 applies only to evidence obtained by the various forms of discovery listed [page742] in rule 30.1.01(1). There was no evidence that Hollinger had obtained any of the sealed material by any form of discovery.

[87] More importantly, the deemed undertaking rule was not pertinent because the material had been filed with the court. Rule 30.1.01(5) expressly states that the deemed undertaking rule does not prohibit the use, for any purpose, of evidence filed with the court or of evidence given or referred to during a hearing. Moreover, even if the evidence had been obtained on discovery and even if it had not been filed with the court, rule 30.1.01(6) provides that the deemed undertaking rule does not prohibit its use "to impeach the testimony of a witness in another proceeding".

[88] On the record in this case, the deemed undertaking rule could not provide any support for the motion judge's decision to continue the protective order.

[89] What we are left with is the potential that the U.S. prosecutors might conceivably find the material filed by Hollinger to be of some assistance to them in their prosecution of Mr. Black. Any civil litigant involved in related criminal proceedings, even those taking place in Canada, would be concerned that information filed by another party in the civil proceeding might assist the prosecution in the criminal case. Recognizing such a bald, unformulated concern as sufficient reason to seal a civil court file would significantly erode the open court principle and frustrate the public interest in the prosecution of crime. The open availability of information fosters the goal of criminal and civil proceedings to ascertain the truth. The fact that probative evidence becomes available to the prosecution does not, in itself, render a criminal trial unfair. Additional circumstances would have to exist to support the discretionary sealing of a civil court file to prevent prejudicial information becoming available to a criminal prosecutor.

[90] The motion judge did not indicate any additional circumstances that existed in this case that made continuing the protective order "necessary" to ensure the fairness of Mr. Black's trial. Rather, he stated [at para. 59] that [he] was aware of the charge against Mr. Black "in only the most general way" and so he would not be able to determine what of the material "might be said to be relevant or prejudicial to the defence of those charges" [at para. 60]. The motion judge's reasoning in this regard failed to apply the burden on the respondents to establish that continuing the sealing order was necessary to prevent Mr. Black's U.S. trial from being unfair. It was for the respondents to place before the court sufficient information to enable it to understand how prosecutor access to the sealed material [page743] would render Mr. Black's trial on the specific charges he was facing unfair. Something more than the simple assertion that prosecutor access to the material would be to Mr. Black's disadvantage in his criminal trial was required.

[91] The lack of an adequate basis for the motion judge's conclusion is apparent from another perspective as well. Even if it is assumed that there would be some unfairness to Mr. Black in making previously unknown evidence available to U.S. prosecutors, it was not established that the prosecutors were not already in possession of this particular material. Counsel for Mr. Black advised the motion judge that Hollinger had a Cooperation Agreement with the U.S. Attorneys Office that required it to provide non-privileged information to the prosecutor. The respondents did not file any evidence as to what part of the material Hollinger had not already supplied to the prosecutor, if any.

[92] In summary, Mr. Black had no interest against self- incrimination once the consent order was made; there was a conceivable risk that Mr. Black's interest in a fair trial would be placed at risk by the public availability of the material filed by Hollinger, but the respondents did not establish that the risk was in fact real.

Material filed ex parte

[93] I would find that the motion judge erred in relying on the fact the protected material had been filed ex parte and its authenticity had not been challenged in open court. He provided no authority for this proposition and it is unsupported by the jurisprudence.

[94] The public's ability to inspect court records is an integral part of the open court principle. In its recent decision Named Person v. Vancouver Sun, supra, the Supreme Court restated the principle, saying at para. 33 that "the state must not interfere with an individual's ability to 'inspect and copy public records and documents, including judicial records and documents'."

[95] There is no exception for ex parte proceedings. In Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332, [2004] S.C.J. No. 41, the Supreme Court clearly expanded the Dagenais/Mentuck test beyond publication bans and specifically stated it applied to all discretionary orders limiting freedom of the press. The Supreme Court repeated this in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, [2005] S.C.J. No. 41, at para. 7 and in Named Person reiterated that the open court principle is "clearly a broad principle of general application to all judicial proceedings": para. 34. [page744]

[96] The values that underlie the open court principle are just as important in ex parte as in contested proceedings. Named Person sets out a brief articulation of these values at paras. 31-32:

The "open court principle" is a "hallmark of a democratic society", as this Court said in Vancouver Sun (Re), [2004] 2 S.C.R. 332, 2004 SCC 43, at para. 23. This principle, as the Court noted in that case, "has long been recognized as a cornerstone of the common law" (para. 24), and has been recognized as part of the law since as far back as Scott v. Scott, [1913] A.C. 417 (H.L.), and Ambard v. Attorney-General for Trinidad and Tobago, 1936 385 (UK JCPC), [1936] A.C. 322 (P.C.), where Lord Atkin wrote, at p. 335: "Justice is not a cloistered virtue". "Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity" (J. H. Burton, ed., Benthamiana: Or, Select Extracts from the Works of Jeremy Bentham (1843), p. 115).

Open courts have several distinct benefits. Public access to the courts allows anyone who cares to know the opportunity to see "that justice is administered in a non-arbitrary manner, according to the rule of law": Canadian Broadcasting Corp v. New Brunswick (Attorney General), 1996 184 (SCC), [1996] 3 S.C.R. 480 ("CBC"), at para. 22. An open court is more likely to be an independent and impartial court. Justice seen to be done is in that way justice more likely to be done. The openness of our courts is a "principal component" of their legitimacy: Vancouver Sun, at para. 25.

[97] The open court principle would be slender if it did not apply to documents that "have not been tested as to their authenticity or factual probity by [the] Court" or material that "has not been challenged in open Court". If the proposition were applied literally, all court files would remain sealed until the court issued rulings. For example, the open court principle means that statements of claim, with the unanswered allegations they contain, are available as soon as they are filed.

[98] The motion judge noted that the information in the sealed material would not be challenged because the Blacks had withdrawn their motion and so there was no need to consider the merits of the interim Mareva order. Therefore, he concluded at para. 30 that "it would be inappropriate, without consent of the parties, to allow release of material that has not been challenged in open court".

[99] The problem with this analysis is that it concentrated on the defendant and ignored the public's interest. There is value in the public understanding and overseeing the exercise of the court's authority to issue ex parte Mareva injunctions freezing individuals' worldwide assets without notice to them. Whatever the documents' ultimate authenticity or factual probity might be, they were the basis upon which the motion judge was persuaded to issue the interim Mareva injunction while exercising the "careful scrutiny and caution" he recognized was necessary. The normal operation of the open court principle in these circumstances [page745] would foster public comprehension of the exercise of this extraordinary judicial power. Further, in this case it is not apparent that the interim Mareva injunction and sealing orders were first issued in open court, and this too would be an aspect of the court's functioning important for the public to understand. Finally, Hollinger's action against Mr. Black raises issues regarding the standards of corporate governance imposed by law, a matter of great significance to the public. These are all factors relevant to the operation of the open court principle that should have been included in the analysis.

[100] I would find the motion judge erred by relying on the fact the sealed material had been filed on an ex parte motion. I turn now to the significance the motion judge placed on Hollinger and the Blacks' settlement.

The settlement

[101] It seems the motion judge believed the parties were able to reach the agreement that led to the consent order only by including a term that the protective order should continue. There was no evidence to that effect, but assuming that is so, it does not, in my view, provide a basis for continuing the protective order.

[102] I begin by noting the limited nature of the settlement between Hollinger and the Blacks. Hollinger did not accept the private undertaking of the Blacks about how they would deal with their assets. Rather, the settlement called upon the court to exert its authority to confirm the Mareva order and restrain the Blacks from dealing with their assets except as permitted by the agreement. The court's jurisdiction to do so rested on the protected material Hollinger had filed earlier.

[103] The motion judge stated at para. 33 that where court approval of a settlement is required, "the presumption should operate that the court file will be open to the public unless it can be demonstrated that there is a particular privacy interest in the filed material or that it is in the interest of achieving the settlement that some or all of the file not be available to the public". In my view, the second part of this proposition requires considerable qualification.

[104] No doubt the encouragement of settlements is a value of the legal system. However, the interest in fostering settlements does not outweigh constitutional principles. Simply showing that sealing a court file was necessary to achieve a settlement is not enough to rebut the media's freedom of the press and the open court principle. In all cases it is necessary to satisfy the Dagenais/Mentuck test. All the particular circumstances, which might include those surrounding settlement, should be considered. [page746]

[105] In this case, to the extent Hollinger and the Blacks agreed the Mareva file should remain sealed because of the potential prejudicial effect on Mr. Black's criminal trial or because the material had been filed on an ex parte motion, these factors had already been considered by the motion judge. If these factors could provide a basis to keep the material sealed they would do so independently of the parties' wishes for confidentiality. Here, there was no suggestion of any additional reason why the parties' wishes should outweigh the open court principle. I agree with the remark of Farley J. that "Sealing orders cannot be granted merely because the parties involved agree to have material sealed--or 'withdrawn'": Stelco Inc. (Re), 2006 1774 (ON SC), [2006] O.J. No. 277, 17 C.B.R. (5th) 95 (S.C.J.).

[106] In my view, in this case there was no basis for attaching weight to the parties' wish for confidentiality as a factor independently of the others the motion judge identified and considered.

Minimal impairment

[107] Finally, I would find that the motion judge erred by failing to consider whether there was a portion of the sealed material that could be released. It seems to me that he reversed the burden of proof at this stage of his analysis. As noted, he had earlier stated unequivocally that the burden of justifying the sealing order lay on the respondents. However, as I explain, he placed the burden on the Globe to establish that some of the material could be disclosed.

[108] The first reason the motion judge offered for declining to embark on a document-by-document review was that he was aware of the charges Mr. Black was facing in only the most general way, and he was not in a position to determine what of the material might be said to be relevant or prejudicial to the defence of those charges. The proper perspective should have been that all the material was presumptively disclosed and that the burden was on Mr. Black to satisfy the court as to which portions of the material should not be released. If the specific nature of the charges was relevant to that determination, the onus was on the respondents to place the necessary information before the court.

[109] In my view, the motion judge also misapplied the burden of proof when he observed [at para. 57] that "[t]he continuance of the Sealing Order . . . does not represent an adjudication of any issue in the action that could be said to be of public importance". The open court principle is intrinsically of public importance. It is [page747] unnecessary for the Globe to demonstrate that the sealing order bore on matters of public importance. The onus was on the respondents to demonstrate that salutary effects of a ban outweighed its inherent deleterious effects.

[110] The motion judge also observed that a document-by- document review would be time-consuming and costly to Hollinger and the Blacks. These parties were seeking a special dispensation of the court -- a departure from the open court principle that routinely applied. There was no onus on the Globe to establish that granting its routine right of access could be accomplished efficiently and without occasioning cost to the parties. The record did not disclose any evidence that the cost and inconvenience to Hollinger and the Blacks of the special treatment they were seeking would be unreasonable in the circumstances.

[111] Finally, the court observed that the documents had not been tested as to their authenticity or factual probity, and the court was not in a position to do so at that stage. I have already explained that the fact the court had not yet finally found the documents to be authentic or have factual probity was not a reason to depart from the open court principle.

[112] I would conclude that the motion judge provided inadequate reasons for failing to consider whether a portion of the sealed material could be released. Conclusion

[113] I would find that the motion judge erred in refusing to accord the Globe intervenor status and erred in deciding to continue the protective order on the record before him.

[114] Neither side arranged to have the sealed material filed before this court for the purposes of the appeal. It would have been helpful had they done so. I have disregarded the possibility that some legally cognizable unfairness to Mr. Black from the release of the material might be apparent on the face of the material itself. The motion judge did not identify any such unfairness and the burden was on the respondents to demonstrate the unfairness, if it existed.

[115] I would set aside the order dismissing the Globe's motion and replace it with an order granting the Globe intervenor status and setting aside the protective order.

[116] If the parties cannot reach agreement on costs, they may make written submissions through the court's senior legal officer, Mr. John Kromkamp. [page748]

ROULEAU J.A. (LASKIN J.A. concurring): -- Overview

[117] I have had the benefit of reading Juriansz J.A.'s reasons. I agree with his conclusion that the motion judge's decision should be set aside and that the appellant should be granted intervenor status to challenge the protective order.

[118] Our reasons diverge on the issue of the protective order. While I am in agreement with Juriansz J.A. that the motion judge's reasoning in respect of the protective order was in some respects flawed, I would leave to the Superior Court the determination of whether the protective order should, in whole or in part, remain in place. This determination would be made with the benefit of submissions from the parties to this action, as well as the intervenor, and after they and the court have had the opportunity to review the material subject to the protective order. The intervenor's review of the material would be upon execution of an appropriate confidentiality undertaking. Discussion

[119] The facts and the position taken by the parties are well summarized in the reasons of Juriansz J.A. (a) Intervenor status

[120] I agree with Juriansz J.A.'s analysis and disposition of the intervenor issue. Specifically, I agree that this aspect of the decision was final, that the appeal from it lies to this court and that the appellant ought to have been granted intervenor status for the reasons he has described. (b) The protective order

[121] Even though the motion judge refused to give the appellant intervenor status, he nonetheless addressed the appellant's challenge of the protective order. In this portion of the reasons I understand the motion judge to be saying that in the event he was wrong and that intervenor status ought to be granted to the appellant, this is how he would have ruled on the merits of the challenge to the protective order.

[122] With respect to the motion judge's analysis of the appropriateness of continuing the protective order, I agree with Juriansz J.A.'s observation at para. 41 that the motion judge's perception that the appellant lacked sufficient connection to challenge the protective order would have undermined the appellant's position. The procedure that the motion judge adopted and [page749] the conclusions he reached might have been different had he appreciated that the effect such orders have on the rights of the media warranted granting intervenor status to the appellant. It may also explain why he considered it unnecessary to review the sealed materials and why he refused to grant the appellant conditional access to these materials for the purpose of making submissions.

[123] In dealing with the protective order issue, the motion judge correctly identified the Dagenais/Mentuck test as being applicable to all discretionary orders limiting freedom of the press and recognized that Mr. Black's fair trial interest may be imperilled. Indeed, the appellant has acknowledged as much. The balancing pursuant to the Dagenais/Mentuck test requires, however, that a high threshold be met before a protective order will be granted. The court is required to balance the constitutionally entrenched freedom of expression against the right to privacy and the right to a fair trial. The reason for this approach was addressed in Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41, [2005] 2 S.C.R. 188, [2005] S.C.J. No. 41, at para. 4:

It is now well established that court proceedings are presumptively "open" in Canada. Public access will be barred only when the appropriate court, in the exercise of its discretion, concludes that disclosure would subvert the ends of justice or unduly impair its proper administration. ([Emphasis in original])

[124] The protective order places the court file out of reach of the public and the media. Because the motion judge refused to give the appellant, a media enterprise, intervenor status for the limited purpose of challenging the protective order, it is apparent to me that his analysis as well as his exercise of discretion respecting the maintenance of the protective order were affected. Without the press interest being factored into the balancing, the balancing was inevitably tainted.

[125] In the particular circumstances of this case, I view the portion of the motion judge's decision to maintain the protective order to be in the nature of obiter dicta and for the reasons described above, strongly linked to the decision on intervenor status. Having determined that the motion judge erred and that he ought to have given the appellant the standing of intervenor to challenge the protective order, it follows that the decision in its entirety must be set aside. There is, therefore, no need to decide whether the portion of the decision relating to the protective order, were it to stand alone, is final or interlocutory for the purpose of determining the appeal route. [page750] (c) Remedy

[126] I turn now to the issue of remedy. On this issue I would reach a different result from Juriansz J.A. Because the sealed materials have not been filed in this court, we are unable to examine them to assess any potential prejudice. In the circumstances of this case, the balancing required to meet the high threshold set by the Dagenais/Mentuck test requires an examination of the documents themselves and an assessment of the potential effect on Mr. Black's trial fairness. Without having reviewed the materials, I cannot say, with certainty, that if the balancing of interests was done with the benefit of such a review it would invariably result in all of the materials being made public.

[127] I agree with the appellant's submission that the determination of whether the fairness of Mr. Black's trial was in fact at risk is best made on the basis of informed submissions. Once the appellant is given intervenor status and reviews the materials, the Superior Court may hear submissions on any potential prejudice to Mr. Black's trial and other possible prejudices that support maintaining the protective order. These submissions would be made with reference to specific passages in the documents so that the court would be in a position to assess the significance of any such prejudice together with other relevant factors such as the public policy interest in encouraging settlement. Against these would be weighed the public interest in "open courts", as well as Charter considerations, such as the core values of expression included in s. 2(b).

[128] Although I reach a different result, I agree with Juriansz J.A.'s analysis of the burden of proof and agree that the motion judge's concerns regarding self-incrimination were misplaced given that the settlement reached had obviated the need for Mr. Black to file any materials in response to Hollinger's motion. Further, I agree that, absent reference to specific information in the documents, the concern over Mr. Black's fair trial rights was no more than unfounded speculation. Because of the approach he adopted, the motion judge did not undertake a review of the sealed materials to assess the strength of Mr. Black's allegations in this regard. Finally, I agree that the motion judge erred by failing to consider whether there was a portion of the sealed material that could be released. Result

[129] In the result, I would set the order aside, grant the appellant intervenor status for the limited purpose of challenging the protective order and remit the balance of the appellant's motion [page751] to the Superior Court for a new hearing. It may well be, however, that a new hearing is unnecessary given the present reality. Mr. Black's trial and sentencing have already occurred and, as acknowledged by Mr. Black's counsel, once those are concluded, Mr. Black would not likely have any legitimate basis for perpetuating the protective order. If however, the new hearing does proceed, the appellant is to be given the opportunity to review the materials for the purpose of making submissions subject to filing an appropriate confidentiality undertaking. The Superior Court will then evaluate whether there is potential prejudice to Mr. Black's interests which would preclude some or all of the material being made public.

[130] If the parties cannot agree on costs, I would direct that they make written submissions through the court's Legal Officer, Mr. John Kromkamp.

Appeal allowed.