Three Important Civil Appeals at the Supreme Court of Canada in October and November

Written By Ranjan Agarwal, Ethan Schiff and Dylan Gibbs

In October and November, the Supreme Court of Canada’s docket is largely made up criminal cases. That said, there are three appeals that may interest businesses and organizations facing civil litigation.

• On October 6th, the Court heard the high-profile appeal in Donovan v Sherman Estate, 2019 ONCA 376. In that case, after the murders of Barry and Honey Sherman, the Ontario Superior Court of Justice appointed an estate trustee and issued a protective order sealing relevant court files. A Toronto Star journalist sought access to the files—he brought an application seeking termination of the protective order and unsealing of the court file. The Court of Appeal set aside the protective orders, holding that the fact that the deceased were murdered was insufficient to warrant granting the sealing order. In the Court of Appeal's view, the application judge's decision effectively amounted to speculation that permitting public access to the files may create risk for the beneficiaries and trustees.
• Ontario (Attorney General) v Clark, 2019 ONCA 311, which was heard on October 15th, engages issues about claims against Crown prosecutors for misfeasance in public office. Here, police officers arrested an accused, who alleged that the officers assaulted him during arrest. The police officers provided the Crown prosecutors with exculpatory evidence about the assault allegations, but the prosecutors did not rely on that evidence in criminal proceedings against the accused. Ruling in favour of the accused in the criminal proceedings, the courts were highly critical of the police officers’ conduct. The police officers then sued the Crown prosecutors for claims based on reputational harm.
• In MediaQMI Inc. v Kamel, 2019 QCCA 814, which will be heard on November 12th, the Court will consider the right to access sealed documents from another case. Here, a media company brought a motion to end a sealing order to access exhibits in a separate matter, which was discontinued soon after. The respondents filed applications to have certain materials remain under seal. The Québec Court of Appeal held that the pleadings had to be made public, but one of the respondents could withdraw certain exhibits from the record.

Please contact any of the authors for more information about the cases or issues discussed in this post, or a member of Bennett Jones’ Commercial Litigation group.

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