Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

This Week at the SCC

On Friday, May 28, 2021, the Supreme Court of Canada is releasing its decision in MédiaQMI inc. c. Magdi Kamel, et al. At issue is the right of a party to remove exhibits from the court record and the ability of a media company to prevent a party from doing so based on the open court principle.

In 2016, the St. Mary’s Hospital in Montreal alleged that its ex-director of material resources, Magdi Kamel, was illegally reimbursed for personal expenses of more than $400,000 from public funds. He allegedly bought things such as electronic devices and gift certificates. The hospital started a lawsuit and filed a forensic report showing how public funds could have been misappropriated. The record was sealed at the hospital’s request. In March 2017, the media company MediaQMI, which owns Le Journal de Montréal, filed a motion to end the sealing order. A month later, the hospital filed a discontinuance of its action against Mr. Kamel. Days later, Mr. Kamel also filed an application to have the originating pleading removed from the record or sealed. The hospital then asked to have various exhibits removed, including the forensic report. MediaQMI Inc. opposed the motions.

The Quebec Superior Court ruled that the originating pleading had to be kept in the record and made public but that the hospital could remove the exhibits from the record. MediaQMI then appealed the judge’s conclusion concerning the removal of the exhibits. A majority of the Court of Appeal dismissed the appeal. A dissenting judge would have allowed the appeal.

I’m leaning towards appeal allowed with the Court preventing the removal of the exhibits and allowing them to be accessed by the media. The Dagenais/Mentuck test sets a high threshold for when court proceedings will be closed to the public and that includes access to exhibits. It is hard to discern what the “serious risk” is here if they are released since it does not involve something like police informants or highly personal information.

Last SCC Decision

  • On May 21, 2021, the Supreme Court of Canada released its decision in Ethiopian Orthodox Tewahedo Church of Canada St. Mary Cathedral v. Aga, 2021 SCC 22. In a unanimous decision authored by Justice Rowe (who had previously written the Wall decision), the Court allowed the appeal and restored the order of the motion judge dismissing the action.
  • The Court ruled that five Toronto-area churchgoers have no legal basis to ask the courts to restore their voluntary church membership.
  • Jurisdiction to intervene in the affairs of a voluntary association like a church depends on the existence of a legal right which the court is asked to vindicate. In this case, unlike in Wall, there was a written constitution and by-law that the churchgoers were relying upon. However, the Court held that the finding of a contract between members of a voluntary association does not automatically follow from the existence of a written constitution and bylaws. Voluntary associations with constitutions and bylaws may be constituted by contract, but this is a determination that must be made on the basis of general contract principles, and objective intention to enter into legal relations is required.
  • In this case, there was no evidence of an objective intention to enter into legal relations, which meant there was no contract and therefore no jurisdiction for the court to intervene.

-Tom Slade