Alberta decision will help lawyers navigate SCC privacy ruling, lawyer says

By Ian Burns

Law360 Canada (July 25, 2022, 8:14 AM EDT) -- An Alberta court has sided with a person seeking to shelter their identity as part of a suit against the federal government, a matter the judge says brings into “sharp relief” the tension between the public’s right to open courts and an individual’s right to privacy.

The plaintiff, who is identified only as A.B., has launched a claim against Veterans Affairs Canada, the Royal Canadian Legion and employees of both organizations, claiming breach of fiduciary duty, breach of privacy and waiver of tort. A.B. says their personal information was accessed and disclosed without consent during their attempts to financial support and medical treatment for alleged injuries suffered during their time with the Canadian Armed Forces.

And Alberta Court of Queen’s Bench Justice Craig Jones has approved A.B.’s requests for anonymization and sealing orders in the case, as well as a publication ban on all details that could lead to identification of A.B. by name. The court looked at the test outlined by the Supreme Court (in Sherman Estate v. Donovan 2021 SCC 25) for such orders — that court openness poses a serious risk to an important public interest; that the order sought is necessary to prevent that serious risk because reasonable alternative measures are not available; and the benefits of the order outweigh the negative effects on a proportional basis.

Justice Jones wrote there is a serious risk to A.B.’s dignity because the issues in the pleadings include stigmatized medical conditions and that disclosure of that information to even one person would compromise A.B.’s ability to control how they are perceived by others.

“And their right to effect that control is of superordinate importance,” he wrote. “Further, I find that their concerns are objectively reasonable because they engage intimate details of their experiences and about them as a person.”

Justice Jones wrote that the Sherman Estate decision “stands for the proposition that an individual’s opinion about the sensitivity of their information outweighs the opinion of the courts or anyone else” and it also “opens the door to challenges to the open court principle that previously did not exist.”

“This matter brings into sharp relief the tension between two competing principles: the public’s right to open courts and an individual’s right to privacy,” he wrote. “It is stating the obvious to say that, every day in Canada, in dozens of courtrooms and in a multiplicity of actions, intimate personal information is revealed. Protection and restraining order applications frequently involve allegations of physical and psychological abuse, harassment, manipulation, emotional damage and suffering. These are intimate and sensitive details that, in my view, can be said to strike at an individual’s biographical core.”

David Wu, Arvay Finlay LLP

David Wu, Arvay Finlay LLP

Justice Jones issued his decision July 13 (Doe v. Canada (Attorney General) 2022 ABQB 487). A.B.’s lawyer, David Wu of Arvay Finlay LLP, said he felt the ruling would be helpful for lower courts in navigating the Sherman Estate decision.

“It is a new decision and there is more of an approach centred on one’s individual dignity, which I think is a good thing,” he said. “All the parties in the case agreed to a publication ban, but in this day and age you need more additional protections because publication bans may not be all that effective at preventing access or disclosure of sensitive personal information.”

Wu said it is possible to protect privacy without affecting the open courts principle all that much.

“When you have decisions like these that are published the name is initialized or under a pseudonym, but the name isn’t really all that important to the reader — you still have the decision and the findings, so 95 per cent of the open court principle is intact, and the public can still access it with only a very minor sliver of information removed,” he said. “But the parties involved still have access to the unredacted information.”

Representatives for the federal government did not respond to a request for comment by press time.

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