Are Pleadings and Exhibits Accessible to the Public in Perpetuity?
This article is a modified version of a case comment initially published in French by Éditions Yvon Blais in January 2018 (EYB2018REP2394).
As a general rule, pleadings and exhibits filed into court are public in nature and can be accessed by anyone, including journalists. In exceptional cases however, it is possible to remove them from public scrutiny, either by having them sealed or withdrawing them from the court record once the file has been closed.
The Quebec Superior Court recently reconsidered its status as a court of record in its decision CIUSS de l’Ouest-de-l’Île-de-Montréal v. M.K.1
* * *
A health care institution, the Centre intégré universitaire de santé et de services sociaux de l’Ouest-de-l’Île-de-Montréal (the “CIUSSS”) applied for the removal from the court record of its exhibits, which had been sealed during the proceedings, after having discontinued its action against a former employee of a hospital affiliated with the CIUSSS. Relying on the second paragraph of article 108 of the Code of Civil Procedure2, it insisted on the need to protect the confidentiality of some of the information in the pleadings and on the obligation to remove the exhibits from the file once the proceedings had come to an end.
The defendant M.K. concurrently applied for the removal of the originating application from the file, basing himself on the right to withdraw a pleading pursuant to article 208 CCP3. In his view the pleadings and exhibits contained potentially defamatory allegations in his regard and he argued that they should not be accessible to the public.
Both of these applications were contested by news organization Quebecor Media, which argued that the court-ordered seal should be lifted. It pleaded the general principle of the public nature of court documents as well as the public interest in the documents filed into evidence, which pertained to the management of the resources of a public body.
* * *
The Court concluded that the exhibits and the interlocutory pleadings could be withdrawn from the court record, but that the originating application must remain on file and be made public.
According to the Court, an exception to the “open court” principle4 lies where the protection of a person’s dignity or important legitimate interests justify it5. In such cases a confidentiality order may be issued, provided that the criteria laid down by the Supreme Court of Canada6 are met: i.e. the order must be necessary to prevent a serious risk to the proper administration of justice, and its salutary effects must outweigh its deleterious effects7.
Once the proceedings have ended, the parties are in most cases free to have the exhibits removed from the court record and thus from public scrutiny8. The rules of procedure also allow the parties to remove the pleadings they have filed, with the possible exception of the originating application.
The justification for this exception is that since the Superior Court is a court of record9, the pleading that initially led to the opening of a file must remain on the court record in perpetuity. This initial pleading may however be sealed, provided the above-mentioned criteria established by the Supreme Court are met. According to the judge, the evidence led in the instant case did not justify such a measure.
* * *
Over the years, the Superior Court has several times invoked its role as a “court of record” to justify its refusal to remove originating applications (motions to institute proceedings) from the court record10. In the decision canvassed here, the judge also interprets articles 206 to 208 and 213 CCP as prohibiting the removal of the originating application11. Our reading of those provisions however leads us to conclude that removal of the originating application is possible after the end of the proceedings. Article 206 CCP for instance refers to the withdrawal of a “pleading”12, which in our view includes the originating motion.
In this instance the judge refused to place the originating application under seal on two grounds. First of all, he considered that the facts proven do not allow the criteria established by the Supreme Court to be met13. Secondly, basing himself on an analogy with a criminal law principle, he concluded that the discontinuance was not tantamount to an acknowledgement that the conduct of M.K. was beyond reproach, and that the latter therefore cannot benefit from the “innocence exception”14. This exception stands for the proposition that once a search warrant has been executed, it is no longer possible to prevent the public from being informed thereof, unless the search turned up nothing15.
In our view this second ground is not relevant to determining if it is necessary to preserve the confidentiality of documents filed into evidence in civil matters. As opposed to criminal law, the essential purpose of civil proceedings and the burden of proof applicable thereto make it hard to determine – both during the proceedings or after an out-of-court settlement – whether the conduct of the defendant party was beyond all reproach. We submit that the Globe and Mail16 test sufficiently protects the legitimate interests of the parties.
This decision sets a precedent because it establishes a distinction between interlocutory pleadings – which can be removed from the court record once the proceedings have ended – and the originating application. And yet article 206 CCP does not make such a distinction, to the extent that removal is requested after the proceedings have ended.
The Court of Appeal will soon have the opportunity to rule on this issue, as at the time of writing, a notice of appeal had been filed by MédiaQMI17.
1 EYB 2017-285847 (S.C.)
2 Art. 108, para. 2: “Any document or real evidence that is filed in the record as an exhibit must remain in the record until the end of the proceeding, unless all the parties consent to its being removed. Once the proceeding has ended, the parties must retrieve the exhibits they have filed; otherwise, the court clerk may destroy them one year after the date on which the judgment becomes final or the date of the pleading terminating the proceeding. In either case, the chief justice or chief judge, if of the opinion that the exhibits can still be useful, may stay their destruction.” (emphasis added)
3 Art. 206: “At any time before judgment, the parties may withdraw or amend a pleading without it being necessary to obtain an authorization from the court, provided doing so does not delay the proceeding and is not contrary to the interests of justice. …” (emphasis added)
4 Articles 11 to 14 of the Code of Civil Procedure, CQLR, c. C-25.01
5 Sierra Club of Canada v. Canada (Minister of Finance),  S.C.R. 522
6 Globe and Mail v. Canada (Attorney General),  2 S.C.R. 592, para. 90
7 Mere concern for avoiding discomfiture or embarrassment does not constitute a serious risk. See Marcovitz v. Bruker, 2005 QCCA 835.
8 Article 108 CCP
9 Courts of Justice Act, CQLR, c. T-6, s. 21
10 Boisvert v. Sirius, services en conseils en technologies de l’information inc., 2015 QCCS 5580 ; Boyer v. Leader Auto Ressources Lar Inc., 2005 CanLII 753 (QC S.C.) ; Constructions André Gendreau (1993) Inc. v. Société Immobilière du Québec, 2003 CanLII 40 (QC S.C.)
11 Paras. 68 to 70 of the canvassed decision
12 Supra, note 3
13 Paras. 125 and 126 of the canvassed decision
14 Paras. 128 and 129 of the canvassed decision
15 A.G. (Nova Scotia) v. MacIntyre,  1 S.C.R. 175
16 Supra, footnote 6
17 File no. 500-09-026931-170