Spring v Spring, 2021 ABQB 778

Court of Queen’s Bench of Alberta Citation: Spring v Spring, 2021 ABQB 778 Date: 20210928 Docket: 4801 128827 Registry: Calgary Between: Jason Spring Applicant - and - Danielle Vanessa Spring Respondent Corrected judgment: A corrigendum was issued on January 21, 2022; the corrections have been made to the text and the corrigendum is appended to this judgment. Corrected judgment: A corrigendum was issued on October 1, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Mr.

Justice M. David Gates _______________________________________________________ [ 1 ] The Applicant, Jason Spring, (“the Applicant”) filed an application on March 24, 2021 seeking to restrict access to court proceedings or records relative to the Court’s February 3, 2021 written decision – Spring v Spring , 2021 ABQB 86 . In his application, the Applicant asked the Court to publish this written decision using initials only, specifically “J.S. v D.V.S.”.

In an affidavit sworn March 12, 2021, the Applicant stated, amongst other things, that the content of the written decision is “unjustifiably critical towards me and is based on what appears to be erroneous findings which could harm my reputation and damage me financially”.

[ 2 ] This application was heard on April 20, 2021. In accordance with the Court’s direction, service of this application was effected on representatives of the media. No media representatives appeared for the hearing of this application. Likewise, no media representatives filed any written materials with the Court. [ 3 ] Following the hearing, the Applicant submitted additional written material to the Court and opposing counsel seeking to amend his application to include references to various sections of the Personal Information Protection Act , SA 2003, c P-6.5 (“ PIPA ”).

He also submitted additional written material in relation to which reference had previously been made during the April 20, 2021 oral hearing. As more fully described below, both the Applicant and counsel for the Respondent filed additional written materials thereafter. [ 4 ] These are my reasons for decision. The application to restrict publication of the decision in Spring v Spring , 2021 ABQB 86 is dismissed. Facts [ 5 ] On July 24, 2020, the Applicant filed an application in the Court of Queen’s Bench of Alberta seeking to vary the terms of the Divorce Judgment granted on March 18, 2008.

He sought various forms of relief, including the reduction of his monthly child support payments to zero retroactive to January 1, 2016. He also sought to reduce his share of

section 7 expenses to zero retroactive to the same date. This application was heard on September 17, 2020. Written reasons dismissing the application were released on February 3, 2021. [ 6 ] On February 4, 2021, the Applicant notified the Court in writing that he did not consent to his name being published in the written decision and asked that he be identified by initials only. [ 7 ] The Applicant was advised by letter dated February 16, 2021, from the Court that he would have to bring a formal application in court, with notice to the media, if he wished to pursue his request for anonymization.

Specifically, the letter advised that: The policy of this Court is that, save for exceptional circumstances, the names of parties should be identified in court proceedings. This approach is in accordance with the Open Court principle. In exceptional circumstances, where it is necessary to prevent a serious risk of harm, or to achieve justice, initials may be used. Generally speaking, these exceptional circumstances relate to the protection of the identity of children.

In this instance, I have not referred to the full names of any of the children in my written reasons; all of the children are referred to by the use of an initial. Under the circumstances, this is as far as I’m prepared to go in terms of the protection of identity. [ 8 ] On March 24, 2021, the Applicant filed an application for an order restricting access to court proceedings or records. Specifically, he sought an anonymization order providing that he be identified by the initials “J.S.” in the publication of the reasons for decision released on February 3, 2021: Spring v Spring , 2021 ABQB 86 .

In the alternative, he sought a publication ban relating to the publication of the decision pending the outcome of the appeal. A Notice of Appeal was filed on March 1, 2021, in the Alberta Court of Appeal. [ 9 ] In the affidavit filed in support of the application, the Applicant deposed that the decision “is unjustifiably critical towards me and is based on what appears to be erroneous findings that could harm my reputation and damage me financially”.

In addition, the Applicant stated that the decision “gives the false impression that I had not disclosed my income tax information prior to the hearing date” and that it inaccurately referred to him having “refused to or had not provided complete financial disclosure prior to the granting of the Divorce Judgment”. In his affidavit, the Applicant also challenged the finding that he had underpaid child support for the years 2008- 2015. He also challenged “false and unproved findings from an invalid Ontario Court Endorsement that imply wrongdoing on my part”.

Finally, the affidavit referred to the fact that the written decision “contains a vast amount of my personal information such as income tax returns and a detailed list of assets”. [ 10 ] At paragraph 16 of his affidavit, the Applicant deposed: The narrative of the Decision is unjustifiably critical of me. Based on the foregoing it contains a number of untrue and damaging findings that could harm my reputation if my name is published. It also contains a vast amount of my private and personal information that could be used for nefarious purposes.

I am concerned about the Decision being made available on the Internet as this could negatively impact my employment opportunities and income. [ 11 ] In his application, the Applicant contended that his privacy and the protection of his private information was protected by ss 7 and 8 of the Canadian Charter of Rights and Freedoms , (“the Charter ”). [ 12 ] The Applicant was self-represented at the hearing of this application on April 20, 2021. The Respondent was represented by counsel at the hearing, but did not appear personal.

Prior to the oral hearing, the Applicant elected not to file any written material in support of his position. During the hearing, the Appellant abandoned his Charter arguments when advised that he would be required to file a written brief if he wished to advance Charter-based arguments. He also advised the Court at the conclusion of the Respondent’s oral submissions that the Respondent’s argument had caught him by surprise.

He sought, and was granted, an opportunity to present further written argument in support of his position. [ 13 ] Subsequent to the hearing of this application, the Applicant sought leave to amend the grounds advanced in support of his application to include the Alberta Personal Information Protection Act , SA 2003, c P-6.5 . In a letter dated April 21, 2021, the Applicant asked to amend paragraph 8 and 10 of his application to remove references to s 8(2)(

m) of the Privacy Act , RSC 1985, c P-21 ...and to replace it with ss. 1 (k), 3 , 4(1) , (3) (

k) and (

o) and (6) , 5 , 6(1) , 7(1) (

d) and (2) and 8 of the Personal Information Protection Act , SA 2003, c P-6.5 . [ 14 ] In the Court’s letter of response to the Applicant dated April 25, 2021, the Applicant was granted leave to amend his application and to advance additional arguments relating to PIPA . Leave was also granted to counsel for the Respondent to advance any

response argument that she wished to make after receiving the Applicant’s additional written submissions in this regard. The Applicantwas also provided with a copy of the transcript of the Respondent’s oral submissions from the April 20, 2021 hearing, together withcopies of the Supreme Court’s decisions in Dagenais and Mentuck. The Applicant was then given 30 days to file and serve any furtherwritten submissions that he might wish to make.

Leave was also granted to the Respondent to file written response submissions uponreceipt of the Applicant’s supplementary written submissions. [15] On May 21, 2021, the Applicant notified the Court through written correspondence that he did not intend to file writtensubmissions with respect to the Dagenais/Mentuck decisions of the Supreme Court of Canada. Rather, he confirmed his reliance onprivacy related grounds in support of his application.

The Law [16] This case requires the Court to strike a balance between protecting the privacy of litigants in appropriate cases and fosteringan open judicial system in accordance with the open court principle. [17] The open court principle is based on the notion that public confidence in the integrity of the justice system is best achievedthrough openness and full publicity of judicial proceedings. Public understanding about the administration of justice is, generallyspeaking, enhanced through the broad dissemination of information relating to court processes.

As such, the public needs on-goingassurance that courts, both judges and juries, operate with integrity and that they dispense justice in a fair and even-handed fashion. Thisassurance takes root in public knowledge and understanding of the judicial process and confidence that the law is being applied fairly ona daily basis.

The "open court" principle ensures that the public has ready access to the public record of court proceedings, as well asphysical access to observe the judicial process unfolding in court rooms across the country. [18] The open court principle was discussed by the Supreme Court in A.B. (Litigation Guardian of) v Bragg CommunicationsInc, 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.

Thisprinciple has been described as a “hallmark of a democratic society” (Vancouver Sun, Re, 2004 SCC 43 , [2004] 2 S.C.R. 332(S.C.C.), at para. 23) and is inextricably tied to freedom of expression. A.B. requested two restrictions on the open court principle: theright to proceed anonymously and a publication ban on the content of the fake Facebook profile. The inquiry is into whether each ofthese measures is necessary to protect an important legal interest and impairs free expression as little as possible.

If alternative measurescan just as effectively protect the interests engaged, the restriction is unjustified.

If no such alternatives exist, the inquiry turns to whetherthe proper balance was struck between the open court principle and the privacy rights of the girl: Dagenais v Canadian BroadcastingCorp., (SCC), [1994] 3 S.C.R. 835 (S.C.C.); R v Mentuck, 2001 SCC 76 , [2001] 3 S.C.R. 442 (S.C.C.). [19] In Vancouver Sun, (Re), 2004 SCC 43 the Supreme Court explained the rationale for the open court principle (at paras 24-26): The open court principle has long been recognized as a cornerstone of the common law: Canadian Broadcasting Corp. v New Brunswick(Attorney General), supra, at para. 21.

The right of public access to the court is “one of principle… turning, not on convenience, but onnecessity”: Scott v Scott, [1913] A.C. 417 (H.L.), per Viscount Haldane L.C., at p. 438. “Justice is not a cloistered virtue”: Ambard vAttorney-General for Trinidad and Tobago, (UK JCPC), [1936] A.C. 322 (P.C.), per Lord Atkin, at p. 335. “Publicityis the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity”: J.H. Burton, ed.,Benthamiana: Or, Select Extracts from the Works of Jeremy Bentham (1843), p. 115.

Public access to the courts guarantees the integrity of the judicial processes by demonstrating “that justice is administered in a non-arbitrary manner, according to the rule of law”: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 22.Openness is necessary to maintain the independence and impartiality of courts. It is integral to public confidence in the justice systemand the public’s understanding of the administration of justice.

Moreover, openness is a principal component of the legitimacy of thejudicial process and why the parties and the public at large abide by the decisions of courts. The open court principle is inextricably linked to the freedom of expression protected by s. 2(

b) of the Charter and advances the corevalues therein: Canadian Broadcasting Corp. v. New Brunswick (Attorney General), supra, at para. 17. The freedom of the press toreport on judicial proceedings is a core value. Equally, the right of the public to receive information is also protected by theconstitutional guarantee of freedom of expression: Ford [page 347] v Québec (Attorney General), (SCC), [1988] 2S.C.R. 712; Edmonton Journal, supra, at pp. 1339 – 40.

The press plays a vital role in being the conduit through which the publicreceives that information regarding the operation of public institutions: Edmonton Journal, at pp. 1339 – 40. Consequently, the opencourt principle, to put it mildly, is not to be lightly interfered with. [20] In Canadian Broadcasting Corporation and National Film Board of Canada v Dagenais, (SCC), [1994] 3SCR 835, and subsequently in R v Mentuck, 2001 SCC 76 , [2001] 3 SCR 442, the Supreme Court further discussed the historyand content of the open court principle.

While both cases dealt with publication bans, the general discussion regarding the principlesunderlying the open court principle are very helpful in addressing the restricted access order sought in this instance. [21] Since the Supreme Court's decisions in Dagenais and Mentuck, it is generally accepted that a person seeking to deny accessto court proceedings and court records in Canada must satisfy what has come to be known as the Dagenais/Mentuck test.

In TorontoStar Newspapers Ltd v Ontario, 2005 SCC 41, the Supreme Court described the test in the following terms (at para 26-27): The Dagenais test was reaffirmed but somewhat reformulated in Mentuck, where the Crown sought a ban on publication of the namesand identities of undercover officers and on the investigative techniques they had used. The Court held in that case that discretionary

action to limit freedom of expression in relation to judicial proceedings encompasses a broad variety of interests and that a publicationban should only be ordered when:

a) such an order is necessary to prevent a serious risk to the proper administration of justice because reasonably alternative measureswill 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 pubic trial, and the efficacy of theadministration of justice.

Iacobucci J., writing for the Court, noted that the "risk" in the first prong of the analysis must be real, substantial, and well grounded inthe evidence: "it is a serious danger sought to be avoided that is required, not a substantial benefit or advantage to the administration ofjustice sought to be obtained. [22] Iacobucci J went on in Toronto Star Newspapers (at para 28) to note that the “Dagenais/Mentuck" test...has been applied toall discretionary actions by a trial judge to limit freedom of expression by the press during judicial proceedings”. [23] The Supreme Court reaffirmed these propositions in Canadian Broadcasting Corp v The Queen, 2011 SCC 3, where theCourt found that the analytical approach developed in Dagenais and Mentuck applies to all discretionary decisions that affect theopenness of proceedings. [24] In Vancouver Sun (Re), the Court held (at para 31): While the [Dagenais/Mentuck] test was developed in the context of publication band, it is equally applicable to all discretionary actionsby a trial judge to limit freedom of expression by the press during judicial proceedings.

Discretion must be exercised in accordance withthe Charter, whether it arises under the common-law, as in the case with a publication ban (Dagenais, supra; Mentuck, supra); isauthorized by statute, for example under s. 486(1) of the Criminal Code which allows the exclusion of the public from judicialproceedings in certain circumstances (Canadian Broadcasting Corp. v New Brunswick (Attorney General), supra, at para. 69); or underrules of court, for example, a confidentiality order (Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41).

The burden ofdisplacing the general rule of openness lies on the party making the application: Canadian Broadcasting Corp. v New Brunswick(Attorney General), at para 71. [25] I would also refer to the decision of Strekaf J (as she then was) in Chevalier v Sunshine Village Corp., 2011 ABQB 557. Inthat instance, the Court was considering a request to restrict access to an affidavit that was already on a court file. At para 6-7, JusticeStrekaf held: Rule 5.33 codifies the common law implied undertaking which prohibits the use of discovery evidence except for the purposes of theaction in which it was produced.

However, once documents are filed on the Court record, they are, absent a restricted court access order,available to the public: Dreco Energy Services Ltd. v Wenzel, 2007 ABQB 635 at paragraphs 30-34.

Open judicial proceedings are one of the cornerstones of a free and democratic society and are necessary to permit freedom of expressionand to maintain the integrity of the judicial process and public confidence in the administration of justice: Dagenais v CanadianBroadcasting 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/Mentuck test.

This was framed in the civil context by Iacobucci J. in Sierra Club at para 53, in thefollowing language: A confidentiality order under Rule 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 contestof litigation 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. [26] Finally, I would refer to the Supreme Court’s decision in Sherman Estate v Donovan, 2021 SCC 25, a decision released afterthe conclusion of argument in this matter.

In Sherman Estate, the Supreme Court upheld the decision of the Ontario Court of Appeallifting a sealing order granted at first instance in relation to an application seeking sealing orders of the probate files of a prominentToronto couple found dead in their home. The deaths were being investigated as homicides. The Court of Appeal found that the privacyinterest advanced lacked a public interest quality and that no evidence had been advanced of a real risk to the personal safety of anyone. [27] In dismissing the appeal, the Supreme Court held (at para 38):

The test for discretionary limits on presumptive court openness has been expressed as a two-step inquiry involving the necessity and proportionality of the proposed order ( Sierra Club , at para. 53). Upon examination, however, this test rests upon three core prerequisites that a person seeking such a limit must show. Recasting the test around these three prerequisites, without altering its essence, helps to clarify the burden on an applicant seeking an exception to the open court principle.

In order to succeed, the person asking a court to exercise discretion in a way that limits the open court presumption must establish that: (1) court openness poses a serious risk to an important public interest; (2) the order sought is necessary to prevent the serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and, (3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

Only when all three of these prerequisites have been met can a discretionary limit on openness – for example, a sealing order, a publication ban, an order excluding the public from the hearing, or a redaction order – properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactment ( Toronto Star Newspapers Ltd. v. Ontario , 2005 SCC 41 ). [ 28 ] Earlier, Kasirer J, writing for the Court, addressed the issue of privacy in certain circumstances amounting to a public interest that should be recognized as an exception to the open court principle.

At para 7 he stated: for the reasons that follow, I propose to recognize an aspect of privacy as an important public interest for the purposes of the relevant test from Sierra Club of Canada v Canada (Minister of Finance), 2002 SCC 41 . Proceedings in open court can lead to the dissemination of highly sensitive personal information that would result not just in discomfort or embarrassment, but in an affront to the affected person’s dignity.

Where this narrower dimension of privacy, rooted in what I see as the public interest in protecting human dignity, is shown to be at serious risk, and exception to the open court principle may be justified. Analysis [ 29 ] The onus is on the Applicant in this instance to displace the general rule of openness by demonstrating that the anonymization order sought in this instance is necessary to prevent a serious risk to the proper administration of justice.

Further, the salutary effects of such an order must out-weigh its deleterious effects: Vancouver Sun , supra , at para 31. [ 30 ] In support of his application, the Applicant relied on “ Balancing Privacy and the Open Court Principle in Family Law: Does De-Identifying Case Law Protect Anonymity? ”, (2014) 23 Dal J Leg Stud 91. He also relied on the fact that the Province of Quebec anonymizes all family law cases by default. [ 31 ] In his written application, the Applicant advanced a number of arguments in support of his request for the use of initials in the written decisions filed on February 3, 2021.

First, he suggested that the content of the decision was “unnecessarily critical” and appeared to be based on “erroneous findings that could harm my reputation and damage me financially.” He sought to support his request for an anonymization order on the basis that he had not consented to the use of his full name. As such, he maintained that the use of his full name in the absence of his consent amounted to a breach of section 8(2) (

m) of the Privacy Act , RSC 1985, c P-21 , though subsequently abandoned this argument and urged the Court to find that this would amount to a breach of PIPA . Initially, he also suggested that the use of his full name violated his privacy rights under sections 7 and 8 of the Charter , but subsequently abandoned this argument. Though provided with a copy of the court decisions, and given leave to file supplementary written submissions, the Applicant elected not to make any submissions relative to the application of the Dagenais/ Mentuck test.

Ultimately, the Applicant elected to rely on his privacy-related arguments and his lack of consent to the use of his full name in the written decision. [ 32 ] The Respondent advanced a number of grounds in urging the Court to find that the Applicant has failed to justify a departure from the open court principle in this instance. First, the Respondent says that the Alberta Rules of Court , Alta Reg 124/2010 , are of slight assistance and limit the court’s authority to make a restricted access order to situations where such authority is conferred by statute or the common law.

According to the Respondent, the only such authority is found in the Dagenais / Mentuck test. [ 33 ] The Respondent maintains that the Applicant has failed to satisfy the first branch of the Dagenais/ Mentuck test, namely to adduce evidence that there is a real and substantial risk to the administration of justice if the requested restricted access order is not granted. In the alternative, the Respondent contends that the salutary effects of granting such an order have not been shown to outweigh the deleterious effect, notably the erosion of the open court principle.

Finally, the Respondent says that the plain wording of the exceptions set out in PIPA extend to the written court decision at the heart of this application. [ 34 ] I am satisfied that the Supreme Court’s decision in Vancouver Sun confirm that the authority to make a restricted access order must be found in either a statutory provision or in the common law.

I agree with the Respondent that the Alberta Rules of Court do not directly confer such authority in a case of this nature. [ 35 ] The Alberta Rules of Court , unlike the Ontario Rules of Civil Procedure, RRO 1990 Reg 194 , do not specify that an individual initiating or responding to an action must use his/her legal name. Nonetheless, it is widely accepted that a person seeking to commence a proceeding in Alberta must do so using her or his full legal name, not initials.

See John Doe v Edmonton Public School District No 7 , 2019 ABQB 952 . [ 36 ] Rule 6.28(e), 6.29 and 6.30 would appear to apply in these circumstances. These rules read as follows: 6.28 Unless an enactment otherwise provides or the Court otherwise orders, this Division applies to an application for an order

a) to ban publication of court proceedings,

b) to seal or partially seal a court file,

c) permitting a person to give evidence in a way that prevents that person or another person from being identified,

d) for a hearing from which the public is excluded,

e) for use of a pseudonym. 6.29 An application under this Division is to be known as a restricted court access application and an order made under this Division is to be known as a restricted court access order. 6.30 A person may file a restricted court access application only if a judge has authority to make a restricted court access order under an enactment or at common law. [ 37 ] Rule 6.28(

e) allows the Court to permit the use of a pseudonym to protect a person’s legal name in court proceedings. However, rule 6.30 stipulates that a court requires either statutory or common law authority to make a restricted court access order. The Respondent was unable to point to any statute that vested such authority in a court.

The Applicant was similarly unable to point to any statutory authority in this regard. [ 38 ] In terms of common law authority, the Respondent correctly points out that the case law that interprets these rules all refer to the Dagenais/ Mentuck test. [ 39 ] The first branch of the Dagenais/ Mentuck test requires that the alleged risk of harm must be real, substantial and well- grounded in the evidence: Mentuck , supra , at para 27 .

The Respondent says that the Applicant’s evidence regarding possible financial risk or harm to his reputation if potential employers somehow find out about the written decision, is at best vague and inconclusive. Indeed, the Respondent challenges whether the Applicant’s assertions amount to evidence at all. [ 40 ] In my view, the Applicant’s evidence is seriously lacking in this regard. His affidavit refers only to the possibility that the publication of his name in the decision” could harm my reputation and damage me financially” (emphasis added).

Other than a broad assertion of possible future risk of harm, the Applicant offers no details or specifics in support of his claim. [ 41 ] I accept the Applicant’s contention that the publication of court decisions on the Internet has greatly enhanced the public’s access to justice through the wide availability of court decisions. However, even if the Applicant’s request were granted, his identity would still be ascertainable by examining the court’s public records relating to this matter. His full name will still appear on all of the various documents filed in these proceedings.

Nonetheless, some level of protection is, of course, afforded by not publishing actual names on the publicly accessible websites containing court decision. [ 42 ] The Respondent goes on to point out that the Applicant makes no reference to any actual damage to reputation or financial harm flowing from the publication of the 2018 Ontario decision in 2018: Spring v Spring , 2019 ONSC 367 .

Given that this earlier decision also contained findings and comments that were highly critical of the Applicant’ conduct, it is significant that the Applicant offers no evidence of damage to reputation or financial harm resulting therefrom in the intervening years.

Likewise, his suggestion that the information contained in the decision might be used for nefarious purposes is, in my view, speculative at best. [ 43 ] Having carefully considered the Applicant’s filed materials and his oral submission, I find that his evidence does not provide real, substantial and well-grounded evidence that supports his claimed risk of damage to reputation or financial risk.

As such, I agree with the Respondent that the Applicant has failed to satisfy the first branch of the Dagenais/ Mentuck test. [ 44 ] The Respondent goes on to suggest that the Applicant is advancing a private interest in this instance. In this regard, the Respondent suggests that a risk to reputation, possible financial harm or embarrassment is not sufficient.

The Respondent maintains that there must be an important public interest at stake in order to justify a restriction of this nature. [ 45 ] In light of my conclusion that the Applicant has failed to discharge the burden resting upon him relative to the first branch of the Dagenais/ Mentuck test, it is not necessary for me to consider the issue of proportionality that lies at the heart of the second branch of the test.

I would, however, offer some observations in this regard. [ 46 ] Earlier in these reasons I referred to the decision of Strekaf J in Chevalier , in which she relied on the decision of Iacobucci J in Sierra Club and its application of the Dagenais/ Mentuck test in the civil context. Justice Iacobucci, in turn, referred to the decision in Re: N.(F.) , 2000 SCC 35 , in which Binnie J confirmed that a party seeking a restricted access order has to demonstrate that his/her interest is not merely a personal interest.

At para 8 of Chevalier , Strekaf J stated: He [Iacobucci J] went on, at paras 543-55, to explain that “the risk in question must be real and substantial, in that the risk is well- grounded in the evidence and poses a serious threat to the commercial interest in question”, and “in order to qualify as an ‘important commercial interest’ the interesting question cannot merely be specific to the party requesting the order; the interest must be one which can be expressed in terms of a public interest in confidentiality”. Iacobucci J.

Then cited with approval Binnie J. in Re N. (F.) , 2000 SCC 35 , at para 10 , that the open court rule only yields “where the public interest in confidentiality outweighs the public interest in openness”. [ 47 ] I agree with the Respondent that the Applicant has failed to substantiate his claimed financial risk or risk to reputation. Likewise, he has failed to demonstrate that his private interests, even assuming that they could be established, rise to the level of a public interest.

However, I have some reservations with the Respondent’s suggestion that personal financial risk, or a risk of damage to reputation, could never rise to the level of a public interest capable of displacing the open court principle in appropriate circumstances.

[ 48 ] By way of analogy, I note that statutory publication bans in criminal cases are designed to protect the privacy of complainants and other vulnerable people if, for no other reason, to encourage and promote the public reporting of alleged criminal behavior. While there is clearly a compelling public interest in protecting the privacy rights of individuals claiming to have been the victims of crime, it is important to recognize that significant private interests are also in play.

I would not want to exclude the possibility that an individual’s private interest in terms of his/her reputation or financial integrity might not rise to the level of a public interest that could, in appropriate circumstances, displace the open court principle. However, such private interest would, in my view, need to be established through evidence that was real and substantial. [ 49 ] In the alternative, the Respondent says that the Applicant has failed to satisfy the second branch of the Dagenais/ Mentuck test relating to proportionality.

The Respondent points to the fact that the open court principle is a foundational principle in the justice system. Protecting an individual from potential embarrassment, or from remote and somewhat speculative damage to reputation and financial risk is not proportional to the interests represented by the open court principle. The Respondent urges the Court to find that the evidence advanced by the Applicant falls far short of justifying the significant interference with freedom of expression and freedom of the press that would result from allowing the application in this instance.

The Respondent underscores the burden resting on the Applicant to bring forward compelling evidence to justify displacing a constitutionally protected right. I agree. [ 50 ] As previously discussed, the Applicant relies on privacy-related arguments in support of this application, having abandoned other arguments, including a Charter argument, advanced in his written application and oral and written submissions to the Court. [ 51 ] First, the Applicant indicates that he did no, and does not, “consent” to his full legal name being published in the court decision.

He cites possible damage to reputation, possible financial risks, and possible detriment to future employment, as the basis for his decision to withhold consent to the use of his full name. While recognizing that

section 4 of PIPA sets out an exemption for courts in Alberta with respect to the collection and disclosure of personal information, the Applicant maintains that the exemption “does not permit the courts to publicize final decisions without consent if they contain an individual’s personal information...” As such, the Applicant contends that his consent is required before the Court can rely on this statutory exemption and publish written decisions on the Internet. [ 52 ] The Respondent, on the other hand, maintains that s 4(3)(

k) and (

o) create an exception to the application of PIPA that applies in this instance. Specifically, the Respondent says that the information that the Applicant objects to being associated with his full name is information contained in court file 4801-128827. As such, the Respondent maintains that PIPA does not apply to this information. [ 53 ] The Respondent also points out, correctly in my view, that Reg 366/2003 does not contain any provisions that would prevent a court from publishing any decision that identifies litigants by name. [ 54 ] I am not persuaded that PIPA has any application to this matter.

PIPA applies to organizations that collect personal information. The term “organization” is defined in s 1(

i) of PIPA , but makes no reference to either judicial proceedings, court records or decisions, or judges. However, s 4(3) specifically states that the Act does not apply to: (

k) personal information contained in a court file, a record of a judge of the Court of Appeal of Alberta, the Court of Queen’s Bench of Alberta or the The Provincial Court of Alberta, a record of a master in Chambers of the Court of Queen’s Bench of Alberta, a record of a justice of the peace other than a non-presiding Justice of the peace under the Justice of the Peace Act , a judicial administration record or a record relating to support services provided to the judges of any of the court referred to in this clause; [ 55 ] In my view, a written decision of a judge of the Court of Queen’s Bench is properly considered to be “a record of a judge of the Court of Queen’s Bench”. [ 56 ] The Applicant also relies on the Freedom of Information and Protection of Privacy Act , RSA 2000, c F-25 (“ FIPPA ”).

Section 4(1) (

a) and (

b) of FIPPA confirms that FIPPA does not apply to information in a court file or record, or communication, personal notes and draft decisions of a person acting in a judicial capacity. [ 57 ]

Section 4 of FIPPA sets out the records to which the Act applies, as well as the records to which it does not apply: 4(1) This Act applies to all records and the custody or under the control of a public body, including court administration records, but does not apply to the following:

a) information in a court file, a record of a judge of the Court of Appeal of Alberta, the Court of Queen’s Bench of Alberta or The Provincial Court of Alberta, a record of a master of the Court of Queen’s Bench of Alberta, a record of a justice of the peace other than a non-presiding Justice of the peace under the Justice of the Peace Act , a judicial administration record or a record relating to support services provided to the Judge of any of the courts referred to in this clause;

b) a personal note, communication or draft decision created by or for a person who is acting in a judicial or quasi-judicial capacity including any authority designated by the Left tenant Governor in Counsel to which the Administrative Procedures and Jurisdiction Act applies; [ 58 ] For the reasons set out above, I am satisfied that a final written decision of a judge of the Court of Queen’s Bench of Alberta falls within the exception set out in s. 4(1) (

a) of FIPPA . I reject the Applicant’s contention that a final decision, as opposed to a draft decision, is not captured by the terms of this exception. I am satisfied that the specific reference to a “draft decision” in s 4(1)(

b) is intended to capture a judge’s drafts of a written decision, the final version of which would be filed and form part of the public court record. The various drafts of that same decision would not, as a matter of course, be filed in the official court record. [ 59 ] Likewise, I reject the Applicant’s contention that any court requires the consent of the litigation parties to the inclusion of their full names in the various documents that make up the official court record, including a written decision relating to the legal proceedings.

Absent a statutory or common law authority to support such a form of restricted court access, I find that there is a presumption in favour of open access. The Applicant offers no authority for the requirement of party consent before a party’s personal

information may be included in a court record or written decision. [60] In considering the issues raised by this application, I have considered various decisions that have considered this or similarissues. [61] In CG v Ontario (Health Insurance Plan General Manager), 2014 ONSC 5392, the Health Services Appeal and ReviewBoard made a restricted access order allowing the applicant to identify herself through the use of initials. On appeal, the OntarioDivisional Court was somewhat critical of this order, finding that the use of initials or a pseudonym amounts to a form of publicationban.

At para 7, the Court stated: ... An order permitting a party to use initials or his pseudonym is a form of publication ban. It is an exception to the general principle thatall proceedings before the court will be open in public. That general principle was set out by the Supreme Court of Canada in Dagenais vCanadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835 and has been reiterated on many occasions since. It is ageneral principle that is not to be easily or lightly interfered with.

The Supreme Court has also made it abundantly clear that exception tothe general rule ought not to be granted without giving notice of such a request to representatives of the media and allowing them anopportunity to be heard. [62] Similarly, in Alanen v Elliot, Appeal No 1901 – 0108AC (oral decision delivered October 29, 2019), Hughes JA held that theDagenais/Mentuck test was applicable to an application brought by Dr. Alanen to have his and his wife’s names replaced by initials in apreviously released written decision.

The Applicant alleged risk of irreparable harm to his professional reputation if the full names werepublished. In denying the request, Hughes JA held that the Applicant had not met the evidentiary burden to show that the use of fullnames in the decision affected his professional reputation. One of the factors considered by Hughes JA was the fact that the decision hasalready been published and no affidavit evidence was advanced before her to demonstrate that the publication had already led to harmfuleffects. [63] Similarly, in John Doe, Richardson J dismissed an application to use a pseudonym.

After applying the Dagenais/Mentucktest, she concluded that she was not satisfied that the publication of the Applicant’s identity was necessary to prevent a serious risk to theproper administration of justice. [64] I would also note the general approach of the Court of Queen’s Bench of Alberta, as set out in a draft document entitled“Recommendations for the Use of Initials in Written Judgments”. While these non-binding recommendations have not yet been formallyapproved by the Court’s Executive Board, they have been the subject of extensive internal consultation within the Court.

In my view,these draft recommendations are helpful in considering the issues raised in this application. [65] Of note, the draft recommendations identify a non-exhaustive list of exceptional circumstances that may justify the use ofinitials in place of a party’s actual name.

Generally, the recommendations suggest that exceptional circumstances might be found toexist: Where there is egregious or sensational factual information referred to in the judgement that could cause irreparable harm to minorchildren or other innocent persons, where the ends of justice could be subverted by disclosure of such information or where suchinformation could be used for an improper purpose. [66] In relation to family law matters, the draft recommendations offer five examples:

i) When the decision discusses allegations of cruel, immoral and aberrant behaviour which could adversely impact on a child of therelationship; ii) When there is an evident need to protect the child of the relationship from objectively discernible harm resulting from disclosure ofthe private details of the marital breakdown, for example, potential media attention to these details; iii) When there are real and serious risk to the privacy of a child involved that would best and most minimally be addressed throughinitializing the names of the parties and the children; iv) Where there are allegations of physical, mental or sexual abuse involving a child; and

v) Where child protection investigations and/or proceedings have been instigated, including historically. [67] I would simply add that these draft recommendations are consistent with the “Use of Personal Information in Judgments andRecommended Protocol” approved by the Canadian Judicial Council in March 2005. [68] Before concluding, I would note that one of the arguments advanced by the Applicant relates to alleged “erroneous anddamaging findings” set out in the written reasons filed in this proceeding.

The Applicant takes the position that “the justice system isresponsible for rectifying this matter through some form of restricted publication as it is unfair to me to suffer the consequences forstatements that are untrue and potentially harmful”: Applicant’s letter to the Court, April 27, 2021. [69] In my view, the Applicant’s concerns with the content of the written decision, including concerns relating to findings of factcontained therein, are properly dealt with by the Court of Appeal.

The Applicant filed a Notice of Appeal in the Court of Appeal onMarch 1, 2021, and his appeal is scheduled to be hear in late 2021 or early 2022. In my view, this is the proper forum to seek a review ofany findings that the Applicant considers to be factually inaccurate or untrue. [70] There is doubtless an important balancing exercise to be undertaken in considering this issue. On the one hand, the court seeksto protect the privacy interests and risk of harm to litigants and innocent third parties. At the same time, the Open Court principle seeksto promote an open, accessible, and accountable justice system.

The Court of Queen’s Bench recognizes that in exceptionalcircumstances, the use of initials will be necessary to prevent a serious risk of harm or to achieve justice.

Conclusion [ 71 ] For the reasons set out above, the application is dismissed. The Respondent is entitled to her costs related to this application. If the parties are unable to reach an agreement on the issue of costs, they may speak to the matter within 30 days of the release of these reasons. Heard on the 20 th day of April, 2021. Dated at the City of Calgary, Alberta this 28 th day of September, 2021. M. David Gates J.C.Q.B.A. Appearances: Jason Spring for the Applicant L.

Zaoral for the Respondent _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Mr. Justice M. David Gates _______________________________________________________ January 21, 2022 Corrigendum: In paragraph 64 the second last sentence has been removed as follows, “The relevant portions of this document are attached as an appendix to these Reasons.” The Appendix has been deleted in its entirety.

_______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Mr. Justice M. David Gates _______________________________________________________ The Respondent’s name is corrected in the style of cause as Danielle Vanessa Spring. In para 1 in the fourth line the initials of “J.S. v M.S.” are changed to reflect “J.S. v D.V.S” In para 71 the fragmented sentence has been removed at the end of the paragraph which read “The Court’s policy is” Appendix added