Warner v. Vanbex Group Inc., 2018 BCPC 234

Citation: Warner v. Vanbex Group Inc. 2018 BCPC 234 Date: 20180927 File No: 1657415 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: KIPLING CONRAD SINGH WARNER CLAIMANT AND: VANBEX GROUP INC. DEFENDANTS RULING ON APPLICATION OF THE HONOURABLE JUDGE W. LEE The Applicant appearing in person: J. Bucci The Claimant appearing in person: K. Warner Counsel for the Defendant: S. Sidhu (Articled Student) Place of Hearing: Vancouver , B.C. Date of Hearing: August 27, 2018 Date of Judgment: September 27, 2018

[1] Jeslen Bucci is a claimant in Small Claims Court action no. 1758739, where the named defendants are Vanbex Group Inc., LisaCheng and Kevin Hobbs (the “Bucci Claim”). These are the same defendants as are named in the present action filed by Kipling Warner(the “Warner Claim”). [2] In the Warner Claim, a trial was held before Judge MacLean on July 3 to 5, 2018. Mr. Bucci said he was present for only partof the trial. He has applied to this court for permission to listen to the audio recording of the trial. Mr. Bucci wishes to obtaininformation about the proceedings against these same defendants. Mr.

Bucci says this may promote settlement of the Bucci Claim. Obviously it will also assist him to prepare for his trial which is set for March 7 and 8, 2019. [3] Kipling Warner and Vanbex Group Inc. take no position about this application. [4] Lisa Cheng and Kevin Hobbs did not participate in this application. [5] The method for recording the trial is known as a digital audio recording system and is more commonly referred to as DARS. [6] I asked Mr. Bucci to provide me with written submissions in support of his application and to set out whether I have the powerto allow a non-party to listen to the DARS. Mr.

Bucci has supplied me with a copy of a Provincial Court Policy titled Access to CourtRecords. [7] The Provincial Court policies can be viewed on the Provincial Court website. The policy titled Access to Court Records statesin part: It is an established rule that our Court is open to the public, but that access to court records must be supervised by the Court to ensure thatthe ends of justice are not subverted by inappropriate disclosure. Curtailment of public access is only justified where there is a need toprotect a social value of superordinate importance.

For instance, broad legislative restrictions exist with respect to access to courtdocuments in regard to matters involving youth in family and criminal proceedings. Consistent application of the following accesspolicies by Court Registries across the province is expected by the Court. Case law on the subject of disclosure of court records indicates that there are several broad policy considerations involved in access tocourt file documents. The presumption is in favour of public access and the burden of contrary proof lies upon the person who woulddeny the exercise of that right.

Undoubtedly every court has a supervisory and protecting power over its own records. Access can bedenied when the ends of justice would be subverted by disclosure or the judicial documents might be used for an improper purpose. SeeNova Scotia (Attorney General) v. MacIntyre, (SCC), [1982] 1 SCR 175. The constitutional principles of freedom ofexpression and the openness of courts are of crucial importance.

Freedom of expression "protects listeners as well as speakers" whichmeans that listeners and readers, as members of the public, have a right to information pertaining to public institutions and particularlythe courts. This is significant in terms of media access to courts and court records. As noted in Edmonton Journal v. Alberta (AttorneyGeneral), (SCC), [1989] 2 SCR 1326: Here the press plays a fundamentally important role. It is exceedingly difficult for many, if not most, people to attend a court trial.

Neither working couples nor mothers or fathers house-bound with young children, would find it possible to attend court. Those whocannot attend rely in large measure upon the press to inform them about court proceedings -- the nature of the evidence that was called,the arguments presented, the comments made by the trial judge -- in order to know not only what rights they may have, but how theirproblems might be dealt with in court. It is only through the press that most individuals can really learn of what is transpiring in thecourts. They as "listeners" or readers have a right to receive this information.

Only then can they make an assessment of the institution. Discussion of court cases and constructive criticism of court proceedings is dependent upon the receipt by the public of information asto what transpired in court. Practically speaking, this information can only be obtained from the newspapers or other media.

It isequally important for the press to be able to report upon and for the citizen to receive information pertaining to court documents. [8] Pursuant to sec. 4.4 of the policy, these types of applications are normally brought before the judge who presided over thehearing or the Regional Administrative Judge.

As I heard this application, I have received permission from then RegionalAdministrative Judge Wingham pursuant to sec. 6.2 of the policy to deal with this application. [9] The disclosure is not being sought for any improper purposes but to better prepare for a hearing involving the same defendantswhich is set for March 2019. [10] The presumption in favour of public access has not been rebutted and in fact two of the parties took no positon regarding theapplication.

The others did not appear at court. [11] In these circumstances, I will order that the Registry prepare a DARS CD of the trial proceedings in Court file 1657415 (KiplingWarner v Vanbex Group Inc., Lisa Cheng and Kevin Hobbs) for the trial held before Judge MacLean on July 3 to 5, 2018. The costs forthe DARS CD will be borne by Mr. Bucci. The specific terms of the order will be in keeping with the terms for an access order as setout in Appendix B of the Provincial Court policy titled Access to Court Records.

I order as follows: 1) The Court Registry will prepare a DARS CD for Court file 1657415 (Kipling Warner v Vanbex Group Inc., Lisa Cheng andKevin Hobbs) for the trial held before Judge MacLean on July 3 to 5, 2018. 2) The DARS CD will be provided to Jeslen Bucci and any fees in relation to the provision of the DARS CD will be paid byJeslen Bucci. 3) The DARS CD is provided only for the purpose of allowing Jeslen Bucci to listen to the DARS CD and that any other use ofthe DARS CD is prohibited.

4) Jeslen Bucci must not:

a) copy, store or transfer the contents of the DARS CD to any device except as may be done by the software or operating system incidental to reviewing the contents, and such review shall only be carried out on computer equipment and peripheral devices belonging to Jeslen Bucci;

b) upload the DARS CD or any of its contents to the Internet or otherwise make the DARS CD or any of its content available through any medium;

c) distribute the DARS CD or any of its contents in any way; and

d) allow any of these things to be done by anyone else. 5) Jeslen Bucci must not provide access to the DARS CD or its contents to anyone else. 6) When the DARS CD is not being used for the purpose permitted by this order, Jeslen Bucci must keep the DARS CD in a secure place, where it cannot be accessed by anyone except pursuant to the terms of this order. 7) Jeslen Bucci must return the DARS CD to the court registry that issued it on or before April 8, 2019. 8) If Jeslen Bucci requires the DARS CD beyond the date specified, Jeslen Bucci must bring a further application to the court for an order extending the time that Jeslen Bucci may retain the DARS CD. [ 12 ] I direct the Registry to send a copy of this decision to the parties of record and also to Mr.

Bucci. ________________________ The Honourable W. Lee Provincial Court Judge