Out-of-Home Marketing Association of Canada v. Toronto
From Ad IDEM / CMLA
The Ontario Court of Appeal set aside a sealing order, reversing the lower court's decision. Justice Epstein, writing for the court on the issue of the sealing order, states that "a request to have exhibits sealed implicates the open court principle, and must be approached with great care". Epstein J. finds that the applicant for the sealing order failed to meet the first part of the Dagenais/Mentuck test, which requires that the order be "necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will not prevent the risk".
Out-of-Home Marketing and Pattison Outdoor Advertising challenged a City of Toronto bylaw imposing a tax on "third party signs" at locations where the goods and services advertised are not located, seeking to have it quashed. Pattison also argued for a sealing order on the basis that it need to protect certain financial information they had filed in support of the litigation, from being publicly disclosed. The lower court decision "grandfathered" existing signs and exempted them from the new tax, and granted Pattison the sealing order.
The City of Toronto appealed the "grandfathering" of existing signs and the sealing order. The Ontario Court of Appeal overturned the lower court's decision on both issues.
In writing for the court on the issue of the sealing order, Epstein J. begins by noting that "no members of the media were notified of the application" by Pattison for the sealing order and that the application judge "in his reasons for granting the order, made no reference to the test for granting a confidentiality order".
Epstein J. goes on at para. 51 to state that the application judge:
...was required to apply the two-step approach identified in a series of cases from the Supreme Court of Canada involving non-publication orders and/or sealing orders...commonly referred to as the Dagenais/Mentuck test".
At para. 52, Epstein J. cites the two-part test, as found in Mentuck at para. 32:
A publication ban should only be ordered when: (a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternative measures will 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 public trial, and the efficacy of the administration of justice.
Epstein J. goes on, at para. 54, to state that the "public interests" referred to in the first part of the Dagenais/Mentuck test includes "other interests that may be considered essential components of the "proper administration of justice", such as access to the courts".
And, Epstein J. goes on to state, at para. 56, that "the evidence relied upon to satisfy the first branch of the test must be "convincing" and "subject to close scrutiny and meet rigorous standards..."
Justice Epstein found that Pattison's evidence, asserting that they needed the sealing order on the basis that disclosure would imperil their commercial interests, fell short.
 In my view, this evidence falls short of allowing Pattison to get past the first branch of the Mentuck test. There is no indication of how the information could be used against Pattison’s business or how great a risk disclosure would present.
Epstein J. concludes by stating, at para. 59: "Absent a supportable finding sufficient to pass the first branch of the test, the order could not have been made under the controlling jurisprudence."