COURT FILE NO.: 680/03
DATE: 20031117
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., MCRAE AND EPSTEIN JJ.
B E T W E E N:
DAVID FRENCH, KELLY MACFARLANE, and other proposed witnesses
Applicants
- and -
THE ALCOHOL AND GAMING COMMISSION OF ONTARIO
Respondent
Paul Stern, for the Applicant David French
Owen Wigderson, for the Applicant Kelly MacFarlane
Ian R. Smith, for the Applicant other proposed witnesses
Richard Kulis, for the Registrar of The Alcohol and Gaming Commission of Ontario
Brian Gover, for the Liquor Control Board of Ontario
Douglas C. Hunt, Q.C. and Alistair Crawley, for the Applicant Lifford Wine Agencies Ltd.
HEARD: November 17, 2003
MCRAE J.: (Orally)
[1] This is judicial review of three orders made by a panel of the Alcohol and Gaming Commission of Ontario, as follows:
(i) On November 5th, 2003, that proceedings had been ordered in camera on September 22nd;
(ii) On November 5th, 2003, that the hearing would continue in camera, and
(iii) on November 5th, 2003, that there would be no exception to the in camera order for counsel for interested persons, except that counsel could attend only when their own client testified.
[2] The facts disclose that the panel never made an order that the proceedings of September 22nd, 2003, were in camera. On November 5th, 2003, an order was made that the hearings would continue in camera and that there would be no exception to the in camera order for counsel for interested parties, except that counsel could attend only when their own client testified.
[3] Section 9(1) of the Statutory Powers Procedure Act and the common law both strongly favour open hearings. Particularly when involving a hearing before a public body such as in this case. There are strong public policy reasons for this. A quote from the judgment of Doherty J.A. in Her Majesty the Queen v. Toronto Star Newspapers et al.:
[4] “A publication ban should only be ordered when:
(a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk, and
(b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public, including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of the administration of justice.”
[5] That quote deals with a publication ban, however the same practical test applies in the instant case.
[6] While there were reasons for the Board to be concerned about the presence of counsel in a case where witnesses were excluded, the Board failed to consider that a less restrictive order would addressed the problems raised by Lifford which would achieve the same result.
[7] The Board has jurisdiction under s.23(1) of the Statutory Powers and Procedures Act to control its own process and to prevent an abuse of its process. This remains open to the Board.
[8] For these reasons the orders of the Board made on November 5th, as already mentioned are ordered quashed. The hearing will proceed as an open public hearing.
CUNNINGHAM A.C.J.
MCRAE J.
EPSTEIN J.
Date of Reasons for Judgment: November 17, 2003
Date of Release: November 24, 2003
COURT FILE NO.: 680/03
DATE: 20031117
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., MCRAE AND EPSTEIN JJ.
B E T W E E N:
DAVID FRENCH, KELLY MACFARLANE, and other proposed witnesses
Applicants
- and -
THE ALCOHOL AND GAMING COMMISSION OF ONTARIO
Respondent
ORAL REASONS FOR JUDGMENT
MCRAE J.
Date of Reasons for Judgment: November 17, 2003
Date of Release: November 24, 2003