Chevalier v. Sunshine Village Corporation, 2011 ABQB 557

Court of Queen ’ s Bench of Alberta Citation: Chevalier v. Sunshine Village Corporation, 2011 ABQB 557 Date: 20110914 Docket: 1101 01193 Registry: Calgary Between: Chris Chevalier, Ben Chevalier, Rowan Harper and Christopher Conway Plaintiffs - and - Sunshine Village Corporation and Thomas Taylor Scurfield Defendants _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.

Strekaf _______________________________________________________ [ 1 ] Chris Chevalier, Ben Chevalier, Rowan Harper and Christopher Conway commenced a wrongful dismissal action against Sunshine Village Corporation (“Sunshine”) and Thomas Taylor Scurfield arising out of the termination of their employment on December 29, 2010. [ 2 ] This is an application brought by Sunshine, with the consent of the Plaintiffs, for a restricted court access order to seal the affidavit of Lorraine Lambert which was filed on June 13, 2011 in the action. Ms. Lambert is the legal assistant to the Plaintiffs’ counsel.

Her affidavit attached a number of documents from Sunshine’s employee files with respect to the Plaintiffs, which had been listed in the Affidavit of Records delivered by Sunshine and made available for review by the Plaintiffs pursuant to the Rules of Court . The affidavit by the Plaintiffs was filed for the purpose of relying upon those documents to oppose an application brought by Sunshine for severance. [ 3 ] On June 23, 2011, I granted an interim order sealing the affidavit, pending the hearing of this application, upon the filing of a Form 32 application contemplated in

Part 6, Division 4 of the Rules of Court providing notice to the media of this application. [ 4 ] The lawsuit and the underlying dispute has generated considerable interest on a number of internet sites. Copies of the pleadings were posted on one site, and other sites - including a Facebook wall - contain numerous comments with respect to the circumstances that gave rise to the litigation.

Sunshine expressed concerns that the documents in question, which include notes used in the investigation of the incident, could be taken out of context and reproduced on the internet sites which might affect the reputation of the Defendants. However, Sunshine filed no evidence describing any damage that it anticipates that it might suffer if the affidavit evidence is not sealed.

While the Plaintiffs consented to the sealing order, they also filed no evidence and have not identified any damage that they allege might be suffered by them if the sealing order were not granted. [ 5 ] Sunshine points out that the documents were made available to the Plaintiffs as a requirement of the litigation process.

Documents produced through the litigation process and listed in an Affidavit of Records are subject to the confidentiality protection prescribed in Rule 5.33 which states: 5.33(1) The information and records described in subrule (2) must be treated as confidential and may only be used by the recipient of the information or record for the purpose of carrying on the action in which the information or record was provided or disclosed unless (

a) the Court otherwise orders, (

b) the parties otherwise agree, or (

c) otherwise required or permitted by law.

(2) For the purposes of subrule (1) the information and records are: (

a) information provided or disclosed by one party to another in an affidavit served under this Division; (

b) information provided or disclosed by one party to another in a record referred to in an affidavit served under this Division; (

c) information recorded in a transcript of questioning made or in answers to written questions given under this Division. [ 6 ] Rule 5.33 codifies the common law implied undertaking which prohibits the use of discovery evidence except for the purposes of the action in which it was produced. However, once documents are filed on the Court record, they are, absent any restricted court access order, available to the public: Dreco Energy Services Ltd. v. Wenzel , 2007 ABQB 635 at paras. 30-34 . [ 7 ] Open judicial proceedings are one of the cornerstones of a free and democratic society and are necessary to permit freedom

of expression and to maintain the integrity of the judicial process and public confidence in the administration of justice: Dagenais v.Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835; R. v. Mentuck, 2001 SCC 76; Sierra Club of Canada v.Canada (Minister of Finance), 2002 SCC 41; Toronto Star Newspapers Ltd. v. Ontario, 2005 SCC 41; Re Vancouver Sun, 2004 SCC 43.Whenever a discretionary order for a publication ban or other form of confidentiality order is sought, courts are required to apply whathas come to be known as the Dagenais/Mentuk test.

This was framed in the civil context by Iacobucci, J. in Sierra Club at para. 53, in thefollowing language: A confidentiality order under R.151 should only be granted when: (

a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the contest oflitigation because reasonably alternative measures will not prevent the risk; and (

b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh itsdeleterious effects, including the effects on the right to free expression, which in this contest includes the public interest in open andaccessible court proceedings. [8] He went on, at paras. 54-55, to explain that “the risk in question must be real and substantial, in that the risk is well-groundedin the evidence and poses a serious threat to the commercial interest in question”, and “in order to qualify as an ‘important commercialinterest’ the interest in question cannot merely be specific to the party requesting the order; the interest must be one which can beexpressed in terms of a public interest in confidentiality”.

Iacobucci J. then cited with approval Binnie. J. in Re N. (F.), 2000 SCC 35 atpara. 10, that the open court rule only yields "where the public interest in confidentiality outweighs the public interest in openness".(Emphasis in original). [9] In this case, Sunshine has not demonstrated that a confidentiality order is required to protect an important public interest orthat such an order would outweigh its deleterious effects. Sunshine’s application for a sealing order is dismissed and the interim sealingorder is set aside. Heard on the 23rd day of June, 2011 and the 27th day of July, 2011.

Dated at the City of Calgary, Alberta this 14th day of September, 2011. J. Strekaf J.C.Q.B.A. Appearances: L. Frank Molnar Field LLP

for the Defendants Andrew R. Robertson MacLeod Dixon LLP for the Plaintiffs