R v Ontario, 2013 ONSC 5544

CITATION : GR v Ontario (Criminal Injuries Compensation Board), 2013 ONSC 5544 DIVISIONAL COURT FILE NO.: 213/13 DATE: 20131017 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: G.R., Appellant AND: Ontario (Criminal Injuries Compensation Board) & B.T., Respondents BEFORE: Aston J. COUNSEL: Ian R. Smith/Lynda E. Morgan , for the Appellant David E.

Fine , for the Respondent, Criminal Injuries Compensation Board HEARD: August 26, 2013 Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identities of the appellant G.R. and the complainant, B.T. and any information that could disclose their identity shall not be published in any document or broadcast in any way. ENDORSEMENT [ 1 ] G.R. is appealing a decision of the Criminal Injuries Compensation Board (the “Board”) dated March 8, 2013. The respondent Board brings this motion in advance of the appeal for an order for directions.

More specifically, the Board seeks an order permitting it to redact from both the documents filed and used at the Board’s hearing (the “Hearing Brief”) and from the Board’s actual decision (the “Reasons”) what it describes as personal and confidential information concerning the applicant victim, B.T. The Board proposes to file an unredacted copy of both the Hearing Brief and the Reasons in a sealed envelope, which would be available to the panel hearing the appeal if necessary. [ 2 ] Counsel for the appellant submits that the appeal record should simply consist of the redacted Reasons and Hearing Brief.

He submits that I should not look at it, nor should the panel hearing the appeal. I disagree. On hearing an appeal, this Court may be obliged to review the entire record of the Tribunal, redacted or not. [ 3 ] Counsel for the appellant submitted, alternatively, that if the redacted evidence and information in the Hearing Brief is to be examined, it should only be examined by the panel hearing the appeal.

While I recognize that the relevance of any redacted material might only become apparent during the course of the submissions on the appeal itself, it seems to me that this approach creates more problems than it solves. It means that the appeal could become bifurcated or the time required to hear it significantly expanded.

There is a real possibility the hearing of the appeal on the merits will need to be adjourned if additional unredacted information is only afforded to the appellant at that time. [ 4 ] B.T. sought compensation as a victim of crime for multiple sexual assaults allegedly committed against her decades ago, at a time when she was between 2 and 10 years of age. The alleged offenders were her deceased grandmother and her brother, the appellant.

The Board found that B.T. was a victim of multiple assaults by her grandmother, but that G.R. had committed only one assault against her which would be considered criminal. [ 5 ] G.R. voluntarily participated in the hearing before the Board and was represented by counsel. In advance of that hearing, he was provided with redacted documents. He moved for further particulars and to have unredacted copies of all the documents the Board might rely upon. An order was made at a prehearing conference for some disclosure but the Board did not provide a complete unredacted copy of all its documents.

Mr G.R.’s counsel renewed his request for further disclosure at the hearing. That request was denied. [ 6 ] The Board granted B.T.’s application and awarded her $15,000 for pain and suffering and $5,000 for expenses. [ 7 ] G.R. is a party to the proceeding by virtue of s. 9(1) (

c) and 9(2) of the Compensation for Victims of Crime Act , R.S.O. 1990, c. C.24 (the “ Act ”). Those provisions read: 9.

(1) When an application is referred under

section 8 the Board shall fix a date, time and place for the hearing of the application and shall, at least 10 days before the hearing date, have notice of the date, time and place served on, (

c) the offender, if it is practicable to serve him or her; …

(2) Every person upon whom notice of a hearing is served and any other person added by the Board or member is a party to the proceeding. [ 8 ] However, I must say at the outset that it is not clear to me how G.R. has standing to appeal the Board’s decision, notwithstanding s.9(2) of the Act . He has no standing to challenge the Board’s finding that B.T. was sexually assaulted on numerous occasions by her grandmother. The Board’s finding that B.T. was a victim within the meaning of s. 5 of the Act is unassailable.

It is also clear from the Board’s reasons that the quantification of compensation would not have been any different if the grandmother had been the only perpetrator. Moreover, the Board has expressly waived any right of subrogation, so G.R. has no financial stake in the Board’s decision. G.R.’s challenge to the Board’s decision is to its finding that he criminally assaulted his sister on one particular occasion.

He is therefore appealing a finding not an outcome. [ 9 ] The issue of standing was not canvassed in the oral submissions when this motion was heard, so I will assume for now that G.R.’s appeal will proceed on the grounds outlined in his Notice of Appeal. He contends, amongst other grounds, that the Board erred in law by failing to disclose relevant evidence to him and by using undisclosed and untested evidence to support the testimony of the applicant victim.

In addition, he alleges that the Board has breached a fundamental principle of natural justice by redacting certain portions of its reasons. [ 10 ] At the risk of over-simplifying the issues, this motion essentially pits the reputational interests of G.R. against the privacy interests of B.T. Superimposed on those individual interests is the public interest in ensuring procedural fairness, transparency and respect for principles of natural justice in any proceeding conducted by a tribunal such as the Board.

In balancing the private interests of the two individuals and taking into account the overarching public interest I begin by noting that there is a “publication ban” order in effect which covers the Board proceedings and, at least on an interim basis, this appeal. A restriction on publication that prohibits identification of G.R. is not a complete answer to G.R.’s reputational concerns, but it is a factor when weighing his interests against those of the Applicant. [ 11 ] When considering the public interest and principles of natural justice in a case like this there are a number of considerations to keep in mind.

First, procedural rights fall across a spectrum. Those rights are at their highest when a person’s liberty is at stake. However, at the other end of the spectrum are statutory decisions which can be made even without a right to an oral hearing or the ability to test the evidence. On this motion counsel for Mr. R. frames the issues as if the Board hearing was a trial. It was not. The appellant did not face any penal jeopardy. He was not at risk regarding damages or any other civil remedy. He participated in the process voluntarily.

Given the publication restriction he had nothing at stake except his reputation within his own family. He chose to participate in the process knowing that the Board was not bound to follow a courtroom’s rules of evidence, but rather an informal proceeding, heard in camera. The appellant also knew the Board has a published policy respecting the privacy interests of applicant victims (Rule 122) which might restrict his access to information. [ 12 ] Medical information, particularly counseling and therapy, is highly personal information.

It should not be disclosed unless there is an apparent connection to the determination of an issue in which the party seeking the information has a legitimate stake, and even then only to the extent necessary. [ 13 ] However, B.T. also chose to make her application knowing that her brother might have access to certain personal information about her.

Notwithstanding the Board’s published policy in Rule 122, she accepted some risk in that regard. [ 14 ] Considering the nature of the proceeding before the Board, the competing rights and interests of the parties and the public interest in the process itself, I have concluded that when it comes to the evidence, B.T.’s personal information should not be disclosed to G.R. unless that information is demonstrably relevant to a finding in which he has a personal stake – namely the finding that he sexually assaulted his sister.

This includes information or documents which could factor into the Board’s assessment of the credibility and the reliability of the evidence of the applicant and the appellant. It does not include the quantification of her compensation. [ 15 ] However, different considerations apply to the Reasons than to the Hearing Brief.

In the case of the Reasons there is an enhanced public interest is the appearance of justice being done and in the ability of the appeal court to fully examine the decision under review. [ 16 ] It is possible to read the Board’s reasons of March 8, 2013 and to conclude, without any reference to the redacted portions thereof, that those reasons adequately explain the Board’s findings, reasoning process and the ultimate outcome. However, there is no presumption that the redacted portions of the reasons are irrelevant to the Board’s finding that the appellant sexually assaulted his sister.

In fact, the location of the redacted portions within the reasons may suggest just the opposite. [ 17 ] It is not enough for the Board to simply assert on this motion that the appellant does not require the redacted portions of the decision to pursue his appeal or to rely on the fact that the appeal court itself will have an unredacted version to look at. I have therefore read the unredacted Reasons.

Though I have concluded that the unredacted Reasons should be produced, I will first describe each redaction in case the panel hearing the appeal is called upon to review my decision on this motion. [ 18 ] The redactions on page 12, the top of page 13 and on page 21 of the Reasons are conceivably part of the Board’s assessment of the credibility and reliability of the applicant’s evidence and ought to be revealed for that reason. [ 19 ] On page 13 the blank part of that page, which continues on the top of page 14, contains findings on the injuries sustained by the applicant.

The redacted portion includes highly personal medical information. None of it is relevant to the grounds for appeal or G.R.’s stake in the outcome. [ 20 ] The redacted portions on page 14 only relate to the quantum of compensation, by reference to supporting documentation and the identification of the places where the applicant lived and attended treatment. This personal information has nothing to do with weighing the evidence or credibility. It is wholly unrelated to the issues on the appeal. [ 21 ] The redacted portions on page 21 also only relate to the compensation issue.

The assessment of B.T.’s consequential injury is

not tied to any assessment of the credibility or reliability of her evidence, is highly personal and is not germane to any issue on the appeal. [ 22 ] However the ability to look at the Reasons and determine that the redacted portions are in fact irrelevant to the substantive issues on the appeal does not end the enquiry. When it comes to public confidence in tribunal decisions the public interest consideration weighs heavily. [ 23 ] This is not the first time that the Board has released reasons with portions redacted. In CP v. Ontario (Criminal Injuries Compensation Board) , [2004] O.J.

No. 5265 (Div.Ct.) at para. 19 , this court held that the Board is not entitled to redact part of its reasons. In that case, the court highlighted the distinction between needing to keep sensitive material protected by sealing the file from the public and keeping parties in the dark about why they lost the case. It also noted that “relying on evidence kept secret from the appellants is not permissible”. It is important to note that this reference to “secret” evidence is a reference to a medical report the court found to be germane to the credibility contest between the applicant and the alleged offender.

The court’s decision in the C.P. case does not address the question raised in this case of the need to disclose evidence that is only relevant to the quantification of compensation, or which is extraneous to an issue raised by the appellant. In my view the nature of the evidence withheld is a relevant consideration in whether it can be withheld. I will return to this point in considering the Hearing Brief material. [ 24 ] On the question of redacted Reasons, I am unwilling to create a precedent that might lead to this court having to routinely examine reasons for the purpose of giving its blessing to redactions.

In this case, the Board could have rendered a separate decision on compensation. It could have separated those issues in which G.R. had a stake from those in which he did not. It could have protected B.T.’s privacy interests in this fashion. However, by rendering a single decision with redactions neither G.R. nor the public can have any confidence that the redacted portions are necessarily irrelevant. This court should not have to fill the gap by examining those reasons and making such an assurance. To permit redacted reasons sets a dangerous precedent.

Notwithstanding the privacy rights of B.T., the complete Reasons must be provided to G.R., without any redactions. He is, of course, bound by the publication ban. [ 25 ] Turning to the Hearing Brief, and whether some or all of it should remain redacted or undisclosed, also involves an assessment of the personal interests of the individuals, as well as the public interest.

The latter obviously includes a need for transparency in processes such as this but it must also take into account the need not to discourage applicant victims by unwarranted disclosure of their personal information. [ 26 ] There may be redacted information or evidence that, without any doubt, is irrelevant to any interest of the appellant. For example, the appellant concedes that he does not wish to have, or need to have, such personal information, as the address and phone number of the applicant.

At the other end of the spectrum, there may be information that only infringes any privacy interests of the applicant victim in a minimal fashion, but at the same time might be important in the assessment of the evidence, including credibility. [ 27 ] The proposed redactions of evidence and other material in the Board’s file are quite extensive. It is not possible to balance the interests of the parties or the significance of that material without looking at it.

In my view, the preferable course is for me to look at each piece of redacted information or evidence and rule that it be produced in unredacted form, in whole or in part, or not produced. [ 28 ] A list of the redacted hearing brief items is found in the Motion Record at Exhibit G to the affidavit of Maureen Armstrong sworn June 27, 2013. The list includes a brief description of the documentary information or evidence that is still redacted, in whole or in part, listed by a page reference. I will use it as a convenient cross-reference for the balance of this decision. • Page 25.

The hearing brief cover page need not be produced. It is not relevant to any fact or substantive issue on the appeal. • Page 26. The Executive

Summary of Hearing Brief need not be produced. It is not relevant to any fact or substantive issue on the appeal. • Page 29. The letter from the applicant to the Board need not be produced. It is only relevant to the possible scheduling of the hearing, not to any substantive issue. • Page 32. The inter-office file transfer request need not be produced. It is an internal Board document respecting physical transfer of the file between Board offices and not relevant to any disputed fact or substantive issue on the appeal. • Page 58.

The letter to the applicant from the Board dated January 18, 2012 is to be produced but with the applicant’s address redacted. The relevance of the document is not apparent on its face but it is not clearly irrelevant and there is no privacy issue to protect other than the applicant’s address. • Page 59. The letter to the applicant from the Board dated January 19, 2012 is to be produced with the applicant’s address redacted. The relevance of the document is not apparent on its face but it is not clearly irrelevant and there is no privacy issue to protect other than the applicant’s address. • Pages 72-73.

The letter from the applicant to the Board dated December 5, 2011 respecting the pre-hearing motion (already heard) need not be produced. The letter affirms her privacy concerns but does not address any issue not already known at the pre-hearing conference and the contents of the letter itself are not relevant to the subsequent hearing on the merits. • Pages 70-71. The emails between the applicant and the Board respecting the letter at page 72 need not be produced. The emails are merely the covering note attaching the letter and the subsequent confirmation of its receipt. • Pages 77-78.

The letters from the applicant to the Board dated November 11, 2011 and February 6, 2012 need not be produced. The letters are not relevant to any disputed fact or substantive issue on the appeal. • Page 79. The additional information cover sheet dated November 16, 2011 need not be produced. It is nothing more than

a cover sheet noting the addition of unredacted already produced correspondence. • Page 84. The letter to the applicant November 16, 2011 enclosing a letter received from the appellant’s solicitor to the Board dated November 1, 2011 need not be produced. It is not relevant to any disputed fact or substantive issue on the appeal. • Page 83. The Disclosure Request Form need not be produced. It is simply the Board’s recording that the letter at page 84 was sent to the applicant. • Page 479. The additional information cover sheet dated November 15, 2011 need not be produced.

It simply records receipt of the information and is not relevant to any disputed fact or substantive issue on the appeal. • Page 480. The letter to the applicant dated November 3, 2011 need not be produced. It simply forwards the appellant’s motion materials to her. • Page 481. The email from the applicant November 15, 2011 need not be produced. It is irrelevant to any disputed fact or substantive issue on the appeal. • Page 482. The inter-office file transfer request form need not be produced. It is an internal administrative document. • Page 483. The additional information cover sheet need not be produced.

It is also an internal administrative document. • Page 484. The email from the applicant need not be produced. It is not relevant to any disputed fact or substantive issue on the appeal. • Page 486. The Disclosure Request Form need not be produced. It is simply an internal administrative document created to keep a record of the information released. • Page 487. The letter to the applicant need not be produced. It is not relevant to any disputed fact or substantive issue. • Page 488. The extension review

summary dated June 25, 2010 need not be produced. It is simply an internal Board document related to whether the Board should hear the application which, on the fact of it, was out of time. It is not relevant to any substantive issue on the appeal. • Pages 489-490. The extension request form need not be produced for the same reason. • Pages 491-498. The primary information form was only partially redacted. The partial redactions are appropriate and the unredacted portions provide adequate disclosure of the allegations involving the appellant. No further information from the document needs to be produced.

The redacted portions are appropriately redacted to protect the privacy of the applicant without any competing interest on behalf of the appellant. • Page 501. The Notice of Hearing to the applicant need not be produced. It includes her address and the notice itself is not relevant to any disputed fact or substantive issue on the appeal. • Page 517. The memo to the Board Chair from staff dated March 7, 2011 seeking direction on the request for additional disclosure to appellant’s counsel need not be produced.

It is not relevant to any substantive issue on the appeal and it is subsumed in the subsequent motion for disclosure at the hearing. • Page 523. The Notice of Hearing to the applicant need not be produced. It includes her address and the Notice itself is not relevant to any disputed fact or substantial issue on the appeal. • Pages 529-530. The Treatment Form was produced with partial redactions. It is not necessary to provide additional information.

The redacted portions are appropriately redacted to protect the privacy interest of the applicant without any competing interest on the part of the appellant. • Pages 531-532. The medical report need not be produced. It includes medical information which cannot be isolated from the psychological injuries claimed and in any event is only relevant to compensation, not causation. The privacy interest of the applicant must prevail over any possible probative value in favour of the appellant, if any. • Pages 540-545. The therapy report need not be produced.

The partial redactions are appropriate and the unredacted portions provide adequate disclosure of the allegations involving the appellant. No further information from the document needs to be produced. The redacted portions are appropriately redacted to protect the privacy of the applicant without any competing interest on behalf of the appellant. • Pages 546-554. The therapy report need not be produced. It includes medical information which cannot be isolated from the psychological injuries claimed and in any event is only relevant to compensation, not causation.

The privacy interest of the applicant must prevail over any possible probative value in favour of the appellant, if any. • Pages 555-560. The therapy report need not be produced. The partial redactions are appropriate and the unredacted portions provide adequate disclosure of the allegations involving the appellant. No further information from the document needs to be produced and the redacted portions are appropriately redacted to protect the privacy of the applicant without any competing interest on behalf of the appellant. • Page 561. The statement of expenses claimed need not be produced.

It only goes to compensation claimed and is not relevant to any interest of the appellant.

• Pages 562-563. The expenses form need not be produced. The information is only relevant with respect to compensation and not to any interest of the appellant. • Page 564. The letter from the applicant enclosing receipts for her expenses need not be produced. The information only goes towards quantifying compensation and is not relevant to any interest of the appellant. • Pages 565-602. None of these documents need to be produced. They only address the issue of quantifying compensation and are irrelevant to any interest of the appellant. • Pages 603-609 and pages 613-614.

None of the letters to the applicant need to be produced. They are not relevant to any fact or substantive issue on the appeal. • Pages 615-618. The letter from the applicant’s mother dated September 20, 2010 was produced in part. The redacted portions of this letter relate to other family members and the redacted information is entirely tangential and irrelevant to the decision of the Board. The privacy interests of the third parties are referred to and should not be infringed without a legitimate purpose. There is none.

I have closely examined the unredacted version of the Board’s reasons and the redacted portions of this document. The earlier provision in this order providing that the redactions on page 12, the top of page 13 and on page 21 should be produced in unredacted form, while preserving the redactions in the letter at pages 615 to 618, strikes the proper balance regarding the conflict between the appellant’s rights on the appeal and the privacy interests of other persons. The redacted portions in this letter need not be produced. • Page 621. The letter from the applicant dated October 26, 2010 need not be produced.

It is not relevant to any fact or substantive issue on the appeal. • Page 623. The letter from the applicant to the Board dated January 27, 2011 need not be produced. It is not relevant to any fact or substantive issue on the appeal. • Pages 625-634. The Ministry of the Attorney General case management system telephone log need not be produced. It is not only simply an internal document but it is not relevant to any fact or substantive issue on the appeal. • Pages 635-642. The Ministry of the Attorney General case management correspondence log need not be produced for the same reason. • Pages 643-645.

The Ministry of the Attorney General case management tracking note does not need to be produced for the same reason. [ 29 ] An Order is granted as follows:

(1) The Criminal Injuries Compensation Board shall serve on the appellant and file with the court, forthwith, an unredacted copy of the Reasons of the Board dated March 8, 2013.

(2) The letter to the applicant from the Board dated January 19, 2012 (reference pg. 59, Exhibit

G) is to be provided to the appellant with the applicant’s address redacted.

(3) The publication ban order of the Board is extended to the hearing of the appeal.

(4) The time for perfection of the appeal is extended to a date to be agreed upon by counsel, or determined on the basis of further written submissions submitted within the next 20 days.

(5) If counsel are unable to agree on the costs of this motion written submissions may be served and filed within the next 30 days. Aston J. Date: October 17, 2013