[2000] 2 F.C. 423
T-85-97
Sierra Club of Canada, a national organization concerned with environmental protection and restoration and a non-profit corporation duly constituted on April 7, 1992 by Letters Patent under the Canadian Corporation Act (Applicant)
v.
The Minister of Finance of Canada, The Minister of Foreign Affairs of Canada, The Minister of International Trade of Canada and The Attorney General of Canada (Respondents)
and
Atomic Energy of Canada Limited (AECL) (Intervener)
Indexed as: Sierra Club of Canada v. Canada (Minister of Finance) (T.D.)
Trial Division, Pelletier J.—Ottawa, December 3, 1999.
Judges and Courts — Open Justice — Prothonotary ordering in camera hearing of application to file supplementary affidavit including confidential materials and for confidentiality order; materials filed to be treated as confidential — Prothonotary’s order silent as to Court’s reasons — Pelletier J. inviting parties to make submissions regarding placing of reasons on public file — Reasons published on Federal Court Reports Web site — Also may have been available on QUICKLAW — Notice of appeal filed — Reasons not containing information which, if disclosed, would harm interests of parties — That appeal taken not precluding release of reasons — If reasons not containing confidential information, no reason in principle why should not be released — Conclusion would have been same had reasons not been publicized, but in fact have — If reasons accessible to part of public, ought to be accessible to all — Reasons dated October 26, 1999 ordered placed on public file.
Practice — Confidentiality orders — Judge inviting submissions regarding placing of reasons on public file — Reasons published on Web sites — Reasons not containing information harmful to parties’ interests — That appeal taken not precluding release of reasons — Reasons ordered placed on public file.
ORDER that Court’s reasons disposing of the intervener’s motion to file an additional affidavit and for a confidentiality order be placed on the public file.
APPEARANCES:
Timothy J. Howard for applicant.
Brian J. Saunders for respondents.
Brett G. Ledger for intervener.
SOLICITORS OF RECORD:
Sierra Legal Defence Fund, Vancouver, for applicant.
Deputy Attorney General of Canada for respondents.
Osler, Hoskin & Harcourt, Toronto, for intervener.
The following are the reasons for order and order rendered in English by
[1] Pelletier J.: At the time of the release to the parties of my reasons dated October 26, 1999 [[2000] 2 F.C. 400 (T.D.)], I invited submissions on the question of having the reasons placed on the public file. I noted that the order pursuant to which the hearing had been held in camera was not clear on the status of the reasons and therefore gave notice of my proposal to have the reasons placed on the public file, and invited submissions from counsel.
[2] Since that time, two things have occurred which may impact upon this question. The first is that a notice of appeal has been filed. The second is that through inadvertence the reasons in question appeared on the Office of the Commissioner for Federal Judicial Affairs’ Web site in the Federal Court Reports Services. It appears that it may also have been available on QUICKLAW [[1999] F.C.J. No. 1633 (T.D.)].
[3] Counsel for AECL request that the reasons not be made public pending the outcome of the appeal. If the appeal succeeds then presumably there is nothing to make public. Counsel for the Sierra Club argued strenuously that the reasons ought to be made public for many of the reasons referred to in the decision itself. No one takes the position that the reasons themselves contain information which, if disclosed, would harm the interests of any of the parties.
[4] I have decided that the reasons should be placed on the public file. I have come to that conclusion for the following reasons.
[5] The fact of an appeal being taken does not preclude the release of the reasons any more than it would in the case of any other application. It would be otherwise if the reasons contained confidential information but it has not been suggested that they do. Releasing the reasons will not make the appeal nugatory since no confidential information will be released.
[6] The order dealing with the in camera hearing did not specifically address the question of the release of the reasons. Confidentiality orders are designed to protect the confidential information of the parties. If the reasons contain no confidential information, there is no reason in principle why they cannot or should not be released.
[7] Finally, I would have come to the same conclusion had the reasons not been publicized but in fact they have been. The genie is out of the bottle. In this day of World Wide Web and news groups, it is impossible to know what circulation they have received. If the reasons are accessible to some part of the public, they ought to be accessible to all.
[8] As a result, there will be an order that my reasons dated October 26 are to be placed on the public file.
ORDER
Whereas pursuant to the order of John Hargrave, Prothonotary, dated August 24, 1999, the application of the intervener to file a supplementary affidavit including confidential materials and for a confidentiality order in respect of the confidential materials was to be heard in camera; and
Whereas the same order provided that the materials filed on the motion were to be treated as confidential, to be returned to AECL if the confidentiality order was not made; and
Whereas the order is silent as to whether it applies to the reasons of the Court disposing of the application; and
Whereas the order provides that it may be amended by the Court on its own motion after giving notice to the parties and allowing them to be heard;
Now therefore, having heard the parties as to whether the reasons of the Court disposing of the intervener’s motion should be placed on the public file, it is hereby ordered that the reasons of the Court dated October 26, 1999 disposing of the intervener’s application shall be placed upon the public file.