Canadian Union of Public Employees (CUPE) v. Nova Scotia Police Review Board

Canadian Union of Public Employees (CUPE) v. Nova Scotia Police Review Board Court Supreme Court Date 2019-04-03 Citation 2019 NSSC 114 Docket Hfx. No. 480843 Judge/Registrar/Adjudicator Rosinski, Peter P. (Honourable Justice) Document Type Decision Relations See also - Canadian Union of Public Employees (CUPE) Local 108 v. Nova Scotia Police Review Board - 2019 NSSC 54 - 2019-02-12 - Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Canadian Union of Public Employees (CUPE) v. Nova Scotia Police Review Board, 2019 NSSC 114 Date: 2019-04-03 Docket: Hfx. No. 480843 Registry: Halifax Between: Canadian Union of Public Employees Local 108 Applicant v. Nova Scotia Police Review Board, Halifax Regional Municipality, Christopher Mosher, The Attorney General of Nova Scotia, Halifax Regional Police Association Respondents Judge: The Honourable Justice Peter P. Rosinski Heard: March 29, 2019, in Halifax, Nova Scotia Counsel: Susan Coen, for the Applicant Sheldon Choo for the Respondent, the Attorney General of Nova Scotia and the Nova Scotia Police Review Board Edward Murphy for Halifax Regional Municipality Jane O’Neill, Michael Murphy and Alex Warshick for Christopher Mosher and Halifax Regional Police Association By the Court: Introduction[1] [1] Mr. Mosher was an officer with the Halifax Regional Police, when his employment was terminated. During his appeal thereof to Nova Scotia Police Review Board (“the Board”), his employer Halifax Regional Municipality (“HRM”) and his then union Halifax Regional Police Association ([HRPA”) reached a settlement via Memorandum of Agreement (“the MOA”) which included a Disability Accommodation Agreement (”DAA”) annexed thereto. The MOA and DAA were presented as a proposed consent order to the Board. The Board accepted the proposed order and made it its own. The judicial review of the decision of the Board will be heard on May 27 – 28, 2019. [2] In his amended Notice of Motion February 25, 2019, Mr. Mosher requests a confidentiality order in his favour pursuant to Civil Procedure Rule (“CPR”) 85. This motion is made to protect, inter alia, his privacy interest in his personal information. [3] Specifically, his draft Order seeks: 1. The Board will provide the Court with a complete and unredacted copy of the Board’s Record (the “Unredacted Record”), which the parties may refer to and rely upon in their submissions to the Court. The Unredacted Record will not form part of the Court’s public file but, would form part of the presiding judge’s file; 2. The redacted copy of the Record (the “Redacted Record”) attached as Appendix “A” to the affidavit of Michael Murphy will form part of the Court’s public file; 3. The parties must ensure that any written submissions made to the court will redact any information that has been redacted in the Redacted Record. Redacted submissions will form part of the Court’s public file, while unredacted submissions will be provided only to the presiding judge and the parties; 4. A publication ban will apply with respect to any oral submissions made in court concerning information contained in the Unredacted Record that is not also contained in the Redacted Record. [4] A proper notice to the media has been given, and the proposed Order is unopposed by the media, and all of: CUPE Local 108, the Board and HRM. [5] Nevertheless, the court must respect the presumptive “open court principle”[2] and go on to determine whether the confidentiality order sought is necessary in order to prevent a serious risk to an important public interest,[3] (because reasonable alternative measures will not prevent the risk), and the salutary effects of the confidentiality order, outweigh its deleterious effects. Mr. Mosher’s argument in favour of the confidentiality order [6] I observe that CUPE Local 108 (“108”) takes the position that” applying reason and logic, some ‘objectively discernible harm’ might arise here”[4] if the confidentiality order is not imposed. It goes on to state “there is no need to talk about Mr. Mosher’s personal life, or his medical or mental health history, or information about his recovery, in order for this judicial review application to be fully heard.” [7] Mr. Mosher notes that hearings by the Board are “not open to the public” pursuant to Section 76(2) of the Police Act, SNS 2004, c. 31, and consequently his personal information would typically remain non-public. He goes on to say that therefore he did not “voluntarily” engage the judicial process: “Mosher has no alternative, but to appear in response to the Applicant’s application for judicial review. He is not a volunteer to these proceedings and is not wilfully choosing to make his personal life, his medical and mental health history, his recovery, and a matter settled confidentially pursuant to an internal disciplinary procedure part of a public court process.” [8] He says that the important public interest to be protected here includes “the well-being of persons who may be harmed by public attention, particularly those in ‘inherently vulnerable’ status”, as evidenced by his own affidavit, and beyond that, that there is in any event “objectively discernible harm as contemplated in AB v. Bragg Communications Inc., 2012 SCC 46 (see paras. 15 – 16). Moreover, there is also a general interest in maintaining confidential, to the extent possible, given the tension with the open-court principle, sensitive information arising within a statutorily mandated closed-to-the-public confidential proceeding between private parties. Why it is proper to issue a confidentiality order as sought in this case[5] [9] In my view, it is an important public interest to protect those who are vulnerable to prejudice to their well-being, from their identities and sensitive personal information being made public, and generally to maintain the confidentiality of proceedings which are by legislation, not open to the public. [10] In this case, I am satisfied that there is a serious risk that a sufficient and objectively discernible, harm would be caused to an important public interest, if a confidentiality order is not imposed here. [11] The salutary effects of the confidentiality order are to protect persons like Mr. Mosher whose sensitive personal information is worthy of protection; and that the private internal process remains as private as required to maintain the confidence of actual and potential participants in that process. [12] The deleterious effects of the confidentiality order are that the public would not have access to Mr. Mosher’s sensitive personal information, which I note in these circumstances is not the crux of the dispute in relation to the judicial review. The facts of Mr. Mosher’s personal circumstances are not so material, that if the confidentiality order was granted, a public reading of the ultimate decision on the judicial review would be such that it would leave the reader with a distorted view of the substance of the matter. [13] The confidentiality order here will see redactions to the publicly available written information, as well as a publication ban. I see no reasonably available alternatives in the circumstances. Conclusion [14] I am satisfied that the confidentiality order sought, as drafted, should be granted. [15] No costs were sought. The parties shall bear their own costs. Rosinski, J. [1] I have previously dealt with this matter in relation to a motion to supplement the Record. Rather than refer in any great detail to the background, I refer the reader to that decision 2019 NSSC 54 [2]As Justice Abella stated in AB v. Bragg Communications Inc., 2012 SCC 46, at para. 11: “The open court principle requires that court proceedings presumptively be open and accessible to the public and to the media. This principle has been described as a ‘hallmark of a democratic society’… and is inextricably tied to freedom of expression.” [3] Including the proper administration of justice. [4] This reference is taken from Justice Abella’s comments in AB: “the amicus curiae pointed to the absence of evidence of harm from the girl about her own emotional vulnerability. But, while evidence of a direct, harmful consequence to an individual applicant is relevant, courts may also conclude that there is objectively discernible harm… absent scientific or empirical evidence of the necessity of restricting access, the court can find harm by applying reason and logic [citations omitted]” at paras. 16 – 17. [5] The general test has been stated by the Supreme Court of Canada in the criminal context - Dagenais v. CBC, [1994] 3 SCR 835 and R. v. Mentuck, [2001] 3 SCR 442, but more appropriately in this context the principles arise from Sierra Club of Canada v Canada (Min. of Finance)- see Justice Oland’s reasons in Osif v. The College of Physicians and Surgeons of Nova Scotia, 2008 NSCA 113, at paras. 14-18; and more recently Justice Fichaud’s reasons in Resolve Business Outsourcing Income Fund v. Canadian Financial Wellness Group Inc., 2014 NSCA 98, at paras. 24-26.